NJDY and Secretary, Department of Families, Community Services and and Indigenous Affairs
[2007] AATA 1255
•24 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1255
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/439
GENERAL ADMINISTRATIVE DIVISION ) Re NJDY Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr EK Christie, Member Date24 April 2007
PlaceBrisbane
Decision The decision under review is affirmed. This means that the application for review is unsuccessful.
.....................[Sgd].........................
Member
CATCHWORDS
SOCIAL SECURITY – MIGRATION – Provisional Spousal Visa – temporary protection order – assurance of support scheme – special benefit – waiver of assurance of support debt – administrative error – special circumstances – evidence: inferences – unintended legislative outcome – Act of Grace payment – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1AA), 35, 37
Domestic and Family Violence Protection Act 1989 (Qld)
Social Security Act 1991 (Cth) ss 1237A, 1237AAD
Financial Management and Accountability Act 1997 (Cth)Haidar v Secretary, Department of Social Security (1998) 157 ALR 359
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Dranichnikov v Centrelink (2003) 75 ALD 134
Caswell v Powell Duffryn Associated Colleries Ltd [1940] AC 152
Briginshaw v Briginshaw (1938) 60 CLR 336McDonald v Director-General of Social Security (1984) 1 FCR 354
Re ACT Department of Health and Nikolovski and Comcare (AAT 10826, 27 March 1996)
REASONS FOR DECISION
24 April 2007 Dr EK Christie, Member Introduction
1. This is an application for a review of the following decision of the Social Security Appeals Tribunal (the “SSAT”) made on 6 June 2006 that Centrelink raise and recover an assurance of support debt of $22,876.16 for the period 3 June 2004 to 17 April 2006.
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1] and the various exhibits lodged by the parties. Further evidence before the Tribunal dealing with medical records of the assuree, a copy of the statement provided by her to the Queensland Police Service, a volume of private documents provided by the assuree to the respondent and a Statutory Declaration provided to DIMIA by a social worker, were the subject of a Direction by the Tribunal, under s 35(2) of the Administrative Appeals Tribunal Act 1975, that disclosure of their contents be restricted to the Tribunal only.
3. The applicant was represented by his mother at the hearing. The respondent was represented by Mr R McQuinlan, a Departmental Advocate.
Issues Before The Tribunal
4. The only issue for the Tribunal to decide was whether a debt due to the Commonwealth arising as a consequence of the applicant giving an undertaking for a Discretionary Assurance of Support (“AoS”) in relation to Ms L, the wife of his brother, may be waived for either “administrative error” or “special circumstances”. Ms L received payments of special benefit, and later, newstart allowance.
5. At the end of the hearing on 7 November 2006, the Tribunal issued a Direction in accordance with the s 33(1AA) [“Decision-maker must assist Tribunal”] provision of the Administrative Appeals Tribunal Act 1975. The Direction related to the period prior to 1 April 2004 to 30 June 2004, when split responsibilities for “assurers” and “assurees”, existed between DIMIA (as it was then called) and DFaCS (the relevant Department at this time) in relation to the administration of the statutory Scheme for Assurance of Support.
6.The Direction sought the following information:
(a)Administrative procedures and processes in place during the period 1 April 2004 to 30 June 2004 that provided counsel, advice or information on the AoS Scheme to an “assurer”. Specifically, documents relating to:
· Requirements for qualification as an assurer
· Who can provide an AoS
· Lodging an AoS application
· AoS interviews (including obligations on DIMIA at this time) to explain the (i) rights, (ii) responsibilities and (iii) implications of an undertaking to become an “assurer”.
· Requirements for withdrawing an AoS.
(b)Departmental documents, information and advice relating to the Assurance of Support Scheme provided to [the applicant] by DIMIA (as it was then called);
(c)A copy of the Provisional Spousal visa issued to [Ms L] (Visa Sub-class 309): see Exhibit 1, T4, Folio 23. Specifically, the terms, conditions and obligations attached to a Visa Sub-class 309;
(d)Departmental information and advice relating to the obligations of an “assuree” under the Assurance of Support Scheme provided to [Ms L] by DIMIA (as it was then called); and
(e)DFaCS documents and information relating to the obligations of an “assuree” receiving Special Benefit entitlements provided to [Ms L]. An extract from the Claim for Special Benefit is already part of the evidence before the Tribunal (Exhibit 1, T5, Folios 28-31).
Facts
7.On the basis of the evidence before it, the SSAT made the following Findings of Fact [T2, Folios 7-8]:
“(i) On 10 March 2004 [the applicant] signed an assurance of support for [Ms L].
(ii)[The applicant’s] brother, married [Ms L].
(iii)[Ms L] arrived in Australia on 18 April 2004.
(iv)[Ms L] separated from her husband approximately 10 days later and made allegations of sexual assault against him.
(v)[Ms L] claimed special benefit on or about 3 June 2004.
(vi)[The applicant] was notified of the claim by Centrelink letter dated 10 June 2004 and invited to an interview to discuss support for [Ms L].
(vii)[The applicant] declined any interview and declined any support for [Ms L].
(viii)[Ms L] was granted special benefit from 3 June 2004 and [the applicant] was advised of this and his liability under the assurance of support by letter dated 17 June 2004.
(ix)Domestic violence charges against [the applicant’s brother] were dismissed on 11 May 2005 due to the prosecution offering no evidence.
(x)Centrelink has paid special benefit and newstart allowance to [Ms L] totalling $22,876.16 as at 17 April 2006.
(xi)[The applicant] was advised by Centrelink in letters commencing 4 October 2004 as to the amount owing to Centrelink in respect of payments made to [Ms L].
(xii)[The applicant] and his family hold the belief that they are the victims of immigration and Centrelink fraud.
(xiii)[The applicant] is in full-time employment as a school teacher.”
8. At the commencement of the hearing, in the absence of the applicant, the applicant’s representative gave the following responses to the Findings of Fact by the SSAT:
· that she agreed with findings (i), (ii), (iii), (iv), (vi), (viii), (ix), (xii) and (xiii);
· that she did not know the date Ms L claimed special benefit [finding (v)];
· that she had no idea as to the amount of social security entitlements paid to Ms L [finding (x)] as the amount constantly varied;
· that she believed in relation to finding (xi) that notification notices had been sent to the applicant; and
· that she disagreed with finding (vii) for the following reasons:
At this time, the matter was in the hands of their lawyer as serious allegations had been made by Ms L against her husband. The Temporary Protection Order (T6) was issued on 29 April 2004. They acted on legal advice they received from their solicitor, that the applicant should not have contact or anything to do with Ms L, and therefore should not have anything to do with Centrelink under the terms of the Temporary Protection Order, until the matter had been resolved by the courts. Consequently, acting on this legal advice, the applicant declined to go to Nundah Centrelink for an interview.
Oral Evidence
9.The husband of the assuree (the applicant’s brother) and the applicant’s parents gave oral evidence at the Tribunal hearing on 7 November 2006. The applicant and the assuree (Ms L) gave oral evidence at the resumed hearing on 12 March 2007. The applicant’s solicitor also gave evidence.
10.Their evidence can be summarised as follows:
(a) The Applicant’s Mother
· DIMIA refused to accept an AoS from the applicant’s brother as he was a recipient of Social Security (newstart allowance). His parents then offered an AoS and signed an AoS dated 9 December 2003. However, this was not sufficient as they were Social Security recipients (age pension). Consequently, the applicant, who was in full-time employment as a school teacher, provided an AoS and signed the agreement on 10 March 2004;
· Ms L left the marriage about 10 days after arriving in Australia. She then applied to the Holland Park Magistrates Court for a Protection Order under the Domestic and Family Violence Protection Act 1989 (Qld). The Court Order for a Temporary Protection Order was initially issued on 29 April 2004 (T6). However, domestic violence proceedings against her husband were dismissed on 11 May 2005 when the prosecution offered no evidence.
· The applicant’s family have a belief that Ms L made false claims of domestic violence (sexual assault) in obtaining the Temporary Protection Order. The family persists in their belief that they are the victims of fraud which should have been investigated by Centrelink. They also believe there has been a failure by Centrelink to verify the validity and lawfulness of the claim for payment for special benefit made by Ms L.
· The applicant’s parents receive full age pensions and have worked actively and are committed to assisting new arrivals in Australia.
(b) The Applicant’s Father
·The family had provided an AoS for Ms L based on the fact that she had been issued with a Provisional Spousal Visa (Visa Sub-class 309). They believe their obligations for support only applied to this visa. However, as DIMIA had subsequently issued Ms L with a different visa allowing her to remain in Australia, they do not understand why their obligations for an AoS remain, given that the visa had changed.
(c) The Applicant’s Brother, Husband of Ms L
·He stated that the most significant obstacle incurred had been the selective withholding of relevant information by DIMIA; information required had been kept back. Without this information it was not possible to see how the AoS debt problem has occurred.
·He had notified DIMIA that he had withdrawn his sponsorship of Ms L for a permanent visa based on Spouse (Migrant) grounds. In a letter dated 10 May 2004, DIMIA advised him that “[y]our withdrawal has been recorded on the official Departmental records and this fulfils your obligations in regard to the application” (Exhibit 2).
(d) The Applicant’s Evidence
·The application Form 28A [Discretionary Assurance of Support (T4, Folio 23)] was completed by him. No other information than that contained on the Form was provided by DIMIA to assist him in understanding the document.
·He was aware of the declarations at the end of the form which he has signed. He believed the first declaration to be the most important i.e. to provide direct or indirect financial assistance to Ms L, a declaration he believed his family would adhere to. He was unaware of the circumstances that could lead to the “ongoing liability for him”.
·He believed that there was an integral link between the spousal visa and the AoS. If the link was broken e.g. the spousal visa being cancelled, then any financial obligations for him would also cease to exist. He acknowledged that he did not seek any legal advice in this regard. However, he also stated that DIMIA had provided him with no information or guidelines that would have facilitated him in understanding his obligations in giving an AoS.
·He acknowledged that he had seen, on the first page of the application form, a statement advising assurers to seek independent legal advice. However, he could not envisage circumstances that could lead to a marriage separation and for him to still remain liable.
·If he had been provided with the DIMIA Guidelines detailing the AoS Scheme (Exhibit 3) he would not have signed the AoS form; paragraph 3 of these Guidelines (the role of DIMIA and the liability to repay benefits) made it quite clear to him what his obligations were.
·He first became aware of his financial liability under the AoS when he was contacted by Centrelink on 10 June 2004 (T8 Folio 43). The file record has the following notation:
“Rang customer to discuss assurance of support for assurree. Cust adv that he has spoken to someone from Centrelink and DIMIA and advised that he has withdrawn his support for customer. Have adv customer of AoS obligations and that this support cannot be withdrawn as he has made a legal undertaking to support the customer for her first 2 yrs in Australia.”
(e) The Applicant’s Solicitor
·The applicant’s solicitor referred to a diary note (dated 16 June 2004) in relation to a request received from Centrelink to provide financial information. His advice was that the applicant should hold off until such time as it could be determined whether or not the police were proceeding with the protection order issue. This evidence by the solicitor verifies the evidence given by the applicant in terms of his not attending the interview requested by Centrelink at their Nundah Office.
(f) Ms L, The Assuree
·Ms L was cross-examined about a number of issues relating to the 10 day period she had lived with her husband in Australia.
·Ms L acknowledged that she had concerns about the quality of the accommodation provided by her husband; in addition, concerns relating to the adequacy of food provided by her husband. However, she could not remember her mother-in-law ever taking her along to real estate agents in order to find alternative rental accommodation at two or three properties.
·Ms L could not remember discussing her marital problems – whether she was happy in the marriage and whether she wished to continue with the marriage – on a number of occasions with the applicant’s mother and Ms L’s aunt.
·There was some ambiguity in whether Ms L had told the applicant’s mother and her aunt whether her husband had told her that he would not force her to have sexual contact with him if she did not want to.
·Ms L was asked by the Tribunal why she had sought a Temporary Protection Order in April 2004 and had it renewed a number of times, but did not go ahead and obtain a permanent protection order. Ms L said that she had acted on police advice who said to her “[o]h he didn’t do anything of this meantime so he wouldn’t do anything, so you either – you just drop it.”
The Assurance of Support Scheme
11. The following material has been extracted from the Department of Families, Community Services and Indigenous Affairs web page [ titled: Assurance of Support, July 2004.
“An Assurance of Support (AoS) is given for migrants who enter Australia under certain visa types, specified by the Department of Immigration and Multicultural Affairs (DIMA). Some visa applicants are required to obtain an AoS before their visa application can be approved. An AoS is a legally binding and unconditional commitment by an Australian resident (the assurer) to repay certain Australian social security payments that have been paid to migrants (the assurees) during their respective AoS period. An AoS period can be two years or ten years, depending on the type of visa sub-class.
The AoS scheme allows migrants with a higher likelihood of needing income support payments, such as parents and potential spouses of Australian residents, entry into Australia, while protecting Australian Government social security funding. Implicitly it is also a commitment by an assurer, who meets certain requirements, to assume financial responsibility for supporting the assuree/s during their AoS period.
The Assurance of Support Scheme to 30 June 2004
Before 30 June 2004 the AoS scheme was operated by DIMIA under the Migration Regulations 1994 and the Department of Family and Community Services (FaCS), through Centrelink.
DIMIA decided when a migrant required an AoS, and whether a monetary bond needed to be lodged. DIMIA also assessed the financial situation of the potential assurer through minimum income test requirements, and approved the AoS. DIMIA held details of the assurer.
Centrelink was responsible for assessing the assuree’s claim for social security payments, should such a claim have been made during the AoS period. It was also responsible for raising a debt against the assurer to recover the amount of any social security payments paid to the assuree during the AoS period.
Under these arrangements, the AoS scheme split responsibilities between DIMIA and FaCS. There were also a number of administrative difficulties arising out of the scheme. The DIMIA and Centrelink systems were not fully compatible, resulting in difficulties in identifying assurers and assurees. Furthermore, due to the lack of comprehensive information on the AoS scheme, many assurers claimed that they did not fully understand their obligations when signing AoS documents, and did not feel obligated to repay their debts to the Australian Government.
There were also issues surrounding the quality of the data transferred from DIMIA to Centrelink regarding assurer and assuree details. (Emphasis added)
The New Assurance of Support Scheme
From 1 July 2004, DIMIA continues to decide whether a potential migrant requires an AoS; however, the assessment of potential assurers is now conducted by Centrelink. Centrelink approves the AoS and notifies DIMIA that approval has been given... Centrelink continues to administer the AoS debt recovery and waiver processes, while the rights of review of a decision pertaining to the assurer remain under the Social Security Act 1991.
The transfer of AoS responsibilities results in a simpler AoS scheme. There are considerable benefits to both assurers and assurees:
·both assurers and assurees are able to utilise Centrelink’s extensive interpreter service and Multicultural Services network – which can be accessed from any Centrelink Call Centre or Centrelink Customer Service Centre – to acquire comprehensive information about the AoS scheme in their preferred language;
·assurers only have to contact one government agency – Centrelink; and
·as the transfer of data from DIMIA to Centrelink about assurers has ceased, all data about assurers will be held by Centrelink, thus protecting the accuracy of this data. This is expected to ensure that debt recovery is more accurately targeted.
There are two types of AoSs, mandatory and discretionary.”
12. The DIMIA document “The Assurance of Support (AoS) Scheme” (Exhibit 3) contains guidelines which are consistent with the materials on the Department of Families, Community Services and Indigenous Affairs web page, that would have applied prior to 30 June 2004:
“2.2 Purpose of the AoS Scheme
The Scheme ensures that, for these persons, private individuals rather than the general community bear some of the financial cost that may be incurred by the health and welfare system.
In broad terms, it does this by obliging assurers (persons who give an AoS) to repay to the Australian Government some of the health and welfare costs incurred in providing support to these persons during their first two years of settlement in Australia.
3. KEY ELEMENTS OF THE SCHEME
3.1 Liability to repay benefits
Briefly, an AoS is a legal commitment by the assurer to repay to the Commonwealth of Australia certain allowances [see regulation 2.38(1))] – in this document, “social security allowances” – paid by Centrelink to any person covered by the AoS during the 2 years following that person’s first entry to Australia or the grant (in Australia) of the relevant visa, whichever happens later – see
· section 5 Relevant visas
· section 36 AoS “validity”
3.2 DIMIA not to give further advice
It is not the role of DIMIA officers to counsel assurers as to the precise operation of the AoS Scheme or which social security allowances assurers are, or will be, liable to repay.
As indicated on the AoS form, assurers are advised to seek independent legal advice.”
Statutory Requirements and Case Law
13. In this application for review, all the evidence and information before the Tribunal is considered as at the date of the hearing and supplementary evidence provided in response to the Direction of the Tribunal made on 8 November 2006 and the resumed hearing.
[See Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 at 367.]
§ The Administrative Error Waiver Provision of the Social Security Act 1991
14. In this application for review the “administrative error” provision is one issue in dispute for the Tribunal to decide. Section 1237A of the Social Security Act 1991 provides for a debt due to the Commonwealth to be waived, either in part or in full, because of “administrative error”:
“SECTION 1237A – WAIVER OF DEBT ARISING FROM ERROR
Administrative Error
1237A(1) “Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt. [Tribunal emphasis].
15. For this section of the Social Security Act 1991 to apply to the applicant’s factual situation, he must have received overpayments of social security entitlements in “good faith”. However, Ms L, and not the applicant, received the entitlements. Therefore this waiver provision cannot apply in the applicant’s case.
· The Special Circumstances Waiver Provision of the Social Security Act 1991
16. In this application for review the “special circumstances” provision is another issue in dispute for the Tribunal to decide. Section 1237AAD of the Act provides for a debt due to the Commonwealth to be waived, either in part or in full, because of “special circumstances”:
“1237AAD – WAIVER IN SPECIAL CIRCUMSTANCES
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or false representation; or
(ii)failing or omitting to comply with a provision of this 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.” [Tribunal emphasis].
17. For this section of the Social Security Act 1991 to apply to the applicant’s factual situation, there must be “special circumstances” in order to waive the Assurance of Support payment debt. In addition, the applicant, or “another person”, must not have “knowingly” made a false statement or false representation or “knowingly” failed to have complied with a provision of the Act. Both these requirements must be satisfied for the applicant to succeed under the “Waiver in Special Circumstances” provision of the Social Security Act 1991.
18. The meaning of the term “knowingly” has been considered by the Tribunal in Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 where the Tribunal stated (at 445):
“There is nothing in s 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 or that he or she is failing or omitting to comply with a provision of the Act. That 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 or omission.” [Tribunal emphasis].
19. The common law meaning and application of the expression “special circumstances” has been considered by the Federal Court and the Tribunal on many occasions. The relevant legal principles that have emerged, over time, that have been applied to provide a meaning for “special circumstances” can be summarised as follows:-
(a)“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. …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’ [Emphasis added].
See Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3.
(b)“…would require something to distinguish [the case to be decided] 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” [Emphasis added].
See Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545.
(c)“To some extent the question whether there were special circumstances must depend on how it came about that the error occurred” [Emphasis added].
See Dranichnikov v Centrelink (2003) 75 ALD 134 at 148.
§ Inferences and Evidence
20. There are two issues before the Tribunal for which there is no direct factual evidence. In these circumstances, the Tribunal must rely on the legal requirements for an “inference” that may, or may not be substantiated for each issue. The two issues before the Tribunal, in this regard, are:
(a)The basis for Ms L being granted a temporary protection order; and
(b)The “belief” of the applicant’s family that they are victims of an immigration fraud; that Ms L had no intention to commit to the marriage of the applicant’s brother; that Ms L asserted assault as a means of leaving her husband, remaining in Australia and obtaining Centrelink payment: see SSAT Decision of the Evidence T2, Folio 7.
21. In relation to the question of inferences, the following statement is relevant in evaluating evidence in terms of whether an inference can be established on the facts before the Tribunal:
"There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture." Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169.
22. The civil standard of proof has been described by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 as follows:
“The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found… to the reasonable satisfaction of the Tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
Consideration of the Issues and Findings of Fact
23. I find the applicant to be a credible witness who answered all questions asked of him in a direct and forthright manner. The same cannot be said of Ms L.
24. I find her oral evidence before the Tribunal in relation to the extent and nature of the trauma she experienced during the ten day period of residence in Australia with her husband to contain indefinite testimony or indirect inferences to the extent that it limits the weight that can be attached to it.
25. Mr McQuinlan acknowledged that the applicant had not contravened the legislation, made any false statements or any wrongdoings under the Social Security Act 1991. His role was that of the person who had assured liability under the AoS. Mr McQuinlan contended that he was quite a remote figure from the central figures in this application, Ms L and her husband.
26. I find that on the available evidence there has been no failure on the part of the respondent to, at least, investigate the claims made by Ms L to support her application for special benefit entitlements.
27. As stated earlier, the waiver for administrative error cannot be applied to the applicant’s case as he did not receive any of the social security entitlements paid to Ms L from June 2004 to April 2006.
28. The competing contentions as to whether waiver in special circumstances would or would not apply in this matter can be summarised as follows:
(a)The Applicant’s Position:
That Ms L had made false and untruthful claims by misrepresenting her circumstances in order to receive social security benefits and to obtain Australian residency. Specifically, claims relating to domestic violence and sexual assault;
(b)The Respondent’s Position:
That Ms L had been truthful and there was an overwhelming amount of evidence to support the Commonwealth to pay social security benefits to her. In addition, there was a factual basis for the Temporary Protection Order to be issued as well as the necessity for her to leave the marital relationship.
29. In terms of the applicant’s case, if his position can be substantiated, then the applicant cannot succeed as the ”knowingly” requirement of s 1237AAD cannot be satisfied. The “knowingly” provision applies to the applicant or “another person” e.g. Ms L. If the applicant’s case is made out and it could be proved that Ms L had “actual knowledge” that she has made a false statement or representation, as to domestic violence and sexual assault, then the special circumstances provision cannot be applied to waive the applicant’s debt.
30. Similarly, if the case for the respondent can be substantiated – based on Ms L’s evidence and the medical, allied health and police evidence and information before the Tribunal being found to be reliable, then the special circumstances provision cannot be applied to waive the debt.
31. Consequently, whatever case succeeds, the Commonwealth could still recover the debt from the applicant. When this outcome is considered together with the outcome under the administrative errors waiver provision [i.e. neither provision can provide any relief for the applicant], it may be concluded that it represents a legislative outcome that may not have been foreseen by Parliament.
32. I have carefully considered the submissions and factual evidence before the Tribunal in this application for review, specifically in relation to the questions of law set by the waiver in the special circumstances provision of the Social Security Act 1991 and the civil standard of proof as described by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved … In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
33. I find that the evidence relied on by the applicant as to claims relating to domestic violence and sexual violence made by Ms L as being false, cannot be supported by proved facts on the available evidence before me. Rather, the applicant relies on “indirect inferences” that cannot be supported by sufficient objective, positive facts to satisfy the civil standard of proof. Consequently, there is factual uncertainty in the application for review brought by the applicant.
34. Similarly, there is factual uncertainty in the case brought by the respondent. A review of all of the medical, allied health documentation and police reports – both the available evidence to all parties and the materials subject to a confidentiality order lead me to conclude that there are only “indirect inferences” to support the respondent’s position in relation to domestic violence and sexual assault.
35. Mr McQuinlan has conceded “that there was no proof of sexual assault”. However, he contends that regard should be given to all of the medical evidence, the police report and an allied health professional statutory declaration, contained in the exhibits and materials subject to the Tribunal’s confidentiality order. The problem with this proposition is that the expert medical and allied health evidence, police report and lay evidence, in this regard, has never been tested for its reliability through cross-examination in legal proceedings. The sequence of Temporary Protection Orders that were granted to Ms L over time were the subject of Magistrates Court orders following a complaint by Ms L to the police. This evidence would have only been tested in legal proceedings when an application for a Permanent Protection Order was the subject of proceedings in the Magistrates Court. However, in Ms L’s case, these proceedings were dismissed on 11 May 2005 when the prosecution offered no evidence. It is also important to recognise that the standard of proof for criminal proceedings, such as sexual assault and violence, is “beyond reasonable doubt” – a much higher standard of proof compared to the “balance of probabilities” that applies in civil proceedings before this Tribunal.
36. Analysis of cases decided by the Tribunal provides guidelines to follow in order to resolve factual uncertainty (see generally McDonald v Director-General of Social Security (1984) 1 FCR 354). The general principle was stated in these terms in Re ACT Department of Health and Nikolovski and Comcare (AAT 10826, 27 March 1996) at [9]:
“[A] decision-maker, and a Tribunal standing in the shoes of a decision-maker, should not exercise a power to make a decision unless it is satisfied that the facts warrant the exercise of the power. If the decision-maker or the Tribunal cannot be satisfied on the balance of probabilities that facts exist which warrant an exercise of the power, then the decision-maker or the Tribunal should not exercise the power. This approach accords with the view stated by the AAT in Re Twyman and Commonwealth of Australia (1987) 13 ALD 402: ‘the status quo must remain unchanged unless the evidence establishes that it should be changed’ (citing McDonald v Director-General of Social Security (1984) 1 FCR 354).”
Decision
37. For all of the above reasons, in particular the factual uncertainty in the cases for both the applicant and the respondent, the status quo must remain unchanged. The decision under review is affirmed.
Observations
38. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The legislation gave the Tribunal no other option than to make such a decision. There is no discretion in the legislation for the Tribunal to make any other decision, as a matter of law.
39. In this context, the Tribunal makes the following observations, for the applicant to consider.
40. Firstly, the applicant could consider the application of Finance Circular 2006/05 (Australian Government, Department of Finance and Administration) to the issues that he has raised. This Finance Circular particularises, amongst other things, the principles and application for Act of Grace payments by Commonwealth Government agencies under the Financial Management and Accountability Act 1997 [“FMA Act”].
41. The following materials in the Finance Circular give an overview of Act of Grace payments.
“13. The act of grace powers under section 33 of the FMA Act allow the Finance Minister and his or her delegates to authorise one-off and periodic payments to individuals or other bodies (such as companies) in special circumstances.
14. The act of grace mechanism:
· may be appropriate in relation to losses that have occurred as a direct result of:
a. the involvement of an agency of the Australian Government, where that involvement had an unintended outcome in the claimant’s circumstance; or
b. the application of Commonwealth legislation, where the application has had an unintended, inequitable or anomalous effect on the claimant in his or her particular circumstances (including in cases where the agency has acted correctly in administering the legislation involved);
· may operate in such a way that conditions are attached to payments;
· is used where the paramount obligation to the claimant is moral, rather than legal (see paragraph 20 of Attachment B: Act of Grace Payments);
· is generally confined to claims related to FMA Act agencies and the legislation they administer;
· can cover economic and non-economic losses sustained; and
· is not applicable in circumstances where:
a. the proposed payments could be construed as literally supplementing other payments that have explicitly been ‘capped’ by Parliament in other legislation; or
b. in some cases where there is legislation that sets conditions for particular benefits, and the proposed act of grace payments would be applied to all or most beneficiaries on an ongoing basis, or for a significant period of time; or
c. the proposed payments could be construed as creating a scheme that would replace case-by-case consideration of the merits of specific claims.”
42. Attachment B of the Finance Circular describes the Act of Grace power, and the principles and processes that underlie decisions to accept or decline requests.
“The nature of the act of grace power
8. Subsection 33(1) of the FMA Act provides:
‘If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability): one or more payments of an amount specified in the authorisation (or worked out in accordance with the authorisation): periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during the period specified in the authorisation (or worked out in accordance with the authorisation)’…
Which types of claims are generally examined in the act of grace context and what are the exceptions to the ‘rules’?
21. The conditions under which act of grace claims are approved can broadly be characterised as where the Minister or delegate considers the Australian Government has a moral obligation, as opposed to a legal obligation, to provide redress because:
· the direct role of an agent/agency of the Australian Government has caused an unintended or inequitable result for the individual or entity concerned;
· the application of Commonwealth legislation has produced a result that is unintended, anomalous, inequitable or otherwise unacceptable in a particular case (including in cases where the agency has acted correctly in administering the legislation involved); or
· the matter is not covered by legislation or specific policy, but it is… considered desirable in a particular case to apply the benefits of the relevant provisions prospectively.
22. The act of grace power is used generally as a last resort, where there is no other remedy that could be used effectively to compensate a person for a loss he or she has suffered (or would suffer were an act of grace payment not approved).
23. As a general rule, claims will not be examined in the act of grace context until a claimant has exhausted all other means available to him or her….”
43. In relation to the Act of Grace policy, it is possible that the applicant may consider that the outcome of this application for review, as covered by the provisions of the Social Security Act 1991, in their factual circumstances, may have led to a result that may be considered as an “unintended anomalous, inequitable, [unjust] or otherwise unacceptable result”. On consideration of the overall circumstances, it may even lead to a conclusion by the applicant that there is a moral obligation on the Commonwealth to make a payment.
44. In order to pursue an Act of Grace Payment, the applicant, as a first step, needs to review the factual information as to how the AoS debt due to the Commonwealth arose and to then determine whether it may satisfy any of the conditions for eligibility for an Act of Grace payment. The next step would be to decide whether or not to pursue an Act of Grace claim.
45. I must emphasise that the Tribunal has no power whatsoever to order that an Act of Grace payment be made to the applicant. The process for such a payment is for the applicant to make a claim to the respondent for an Act of Grace payment and to request that the claim be assessed under the specified eligibility criteria. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but with the Minister for Finance or their appointee.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: ………………………….
F. Kamst, Legal Research OfficerDate/s of Hearing 7 November 2006, 12 March 2007
Date of Decision 24 April 2007
The Applicant was represented by his mother
For the Respondent Mr R McQuinlan, Departmental Advocate
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