PICO and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICE AND INDIGENOUS AFFAIRS
[2010] AATA 357
•13 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 357
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2989
GENERAL ADMINISTRATIVE DIVISION ) Re CARLOS PICO Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICE AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date13 May 2010
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – assurance of support – applications by applicant and his brother accepted by Centrelink – visa granted to beneficiary of assurance who married brother – parties separated and beneficiary granted Special Benefit and Widow Allowance – assurance of support debt sought from applicant – special circumstances – whether waiver or write-off of debt possible – decision under review affirmed
Social Security Act 1991 ss 729, 732, 733, 734, 1061ZZGA, 1061ZZGD, 1061ZZGF, 1061ZZGG, 1227(1), 1236(1A), 1237AAD, 1237AAE
Re NJDY and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1255
REASONS FOR DECISION
13 May 2010 Senior Member R W Dunne introduction
1. The applicant is this matter is Mr Carlos Pico (“Carlos”). On 7 November 2005 the applicant’s brother, Mr Joao Pico (“Joao”) lodged with the respondent (“Centrelink”) a signed and substantially completed “Application to provide an Assurance of Support” (“Assurance”) in respect of Ms Juana Pabla Lizana Ramirez and her son, Mr Jaime Antonio Cardell Lizana. On 16 November 2005, the applicant also lodged with Centrelink a signed and substantially completed Assurance in respect of the same two persons. At the time, Ms Ramirez and her son were living in Chile. Ms Ramirez was granted a visa and entered Australia on 6 January 2006. On 20 January 2006, she married Joao, but they separated on 9 August 2006. Following the separation, Ms Ramirez applied for and was granted a Special Benefit and was later transferred to a Widow Allowance. Centrelink records show that, prior to the grant, the applicant was contacted and he indicated that he was unwilling to provide support. Centrelink sought to recover the debt, arising from the grant, from the applicant. He requested a review of Centrelink’s decision to recover the debt, which was affirmed by an Authorised Review Officer and the Social Security Appeals Tribunal (“SSAT”). The applicant has applied to this Tribunal for review of the decision of the SSAT.
2. At the hearing, Mr Geoff Sandell acted for the applicant and Centrelink was represented by Mr Christian Visser (from Centrelink Advocacy Branch). The Tribunal received into evidence the T documents (Exhibit R1) and the supplementary T documents (Exhibit R2) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following documents:
·the applicant’s documents (Exhibit A1);
·the respondent’s documents (Exhibit R3);
·SA Police Department Domestic Violence Report (named victim and reporting person, Ms Ramirez) dated 9 August 2006 (Exhibit R4);
·business certificate from Santiago, Chile dated 11 February 2010 (Exhibit R5);
·closure certificate from Santiago, Chile dated 9 December 2005 (Exhibit R6);
·letter from L M Training Specialists Pty Ltd dated 15 September 2006 (Exhibit R7);
·letter from Yarrow Place, Rape and Sexual Assault Service dated 5 February 2010 (Exhibit R8); and
·witness statement of Ms Coralia Dominguez dated 7 December 2009 (Exhibit R9).
issues for the tribunal
3. The issues for the Tribunal are these:
(a)Does the applicant have an assurance of support debt and, if so, what is the amount of the debt?
(b)If there is an assurance of support debt, can all or part of the debt be waived or written-off?
legislative scheme
4. The assurance of support scheme is governed by Chapter 2C of the Social Security Act 1991 (the Act). The provisions of Chapter 2C relevantly read:
“1061ZZGA What is an assurance of support?
In this Chapter:
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 payments that are:
(a) received in respect of a period by another person who:
(i) is identified in the undertaking; and
(ii)becomes the holder under the Migration Act 1958 of 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 1061ZZGH when the payments are received.
Note: An assurance of support may relate to social security payments received by 2 or more persons. See paragraph 23(b) of the Acts Interpretation Act 1901.
…
1061ZZGD Accepting or rejecting an assurance of support
1061ZZGD(1) If an assurance of support is given under this Chapter, the Secretary must accept or reject the assurance.
Accepting the assurance
1061ZZGD(2) The Secretary may accept the assurance, but only if:
(a)he or she is satisfied that the requirements that are specified for the purposes of this paragraph in a determination under section 1061ZZGH and relate to the person who gave the assurance are met; and
(b)the requirements in subsection (3) are met, if the assurance is in respect of:
(i)a visa of a kind that can be granted under the Migration Act 1958 only if an assurance of support is accepted; and
(ii)another person who was at least 18 at the time of the application for the visa;
(whether or not the assurance is also in respect of someone else who was under 18 at the time of the application for the visa).
Note 1: The Secretary may accept an assurance given by 2 or more persons only if satisfied that the requirements specified in a determination under item 3 of the table in subsection 1061ZZGH(1) and relating to all of them are met. See paragraph 23(b) of the Acts Interpretation Act 1901.
Note 2: Subparagraph (2)(b)(i) does not apply to a visa of a kind in relation to which there is a discretion to request an assurance of support, because a visa of that kind can be granted without accepting an assurance if one is not requested (even if, in a case in which an assurance is requested, acceptance of the assurance is a condition for the grant of the visa).
1061ZZGD(3) At least one person who gave the assurance must have given the Secretary a single security for the liability that may be incurred, under section 1061ZZGG in connection with the assurance and a social security payment received by anyone identified in the assurance, by everyone who gave the assurance. The security must:
(a) be in a form approved by the Secretary; and
(b)be of a value specified for the purposes of this paragraph in a determination under section 1061ZZGH.
…
1061ZZGF When an accepted assurance is in force
1061ZZGF(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 earlier of the following times:
(i)the end of the period specified for the purposes of this subparagraph in a determination under section 1061ZZGH;
(ii)the time (if any) determined by the Secretary under subsection (2).
Note: An assurance of support given in respect of 2 or more persons may be in force at different times in respect of each of those persons.
…
1061ZZGG Liability to pay for social security payments
1061ZZGG(1) This section has effect if:
(a)a person (the assurer) has given an assurance of support that has been accepted under this Chapter; and
(b)a social security payment is 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 payment is specified for the purposes of this section in a determination in force under section 1061ZZGH when the payment is received.
1061ZZGG(2) The assurer is liable to pay the Commonwealth the amount of the social security payment.
1061ZZGG(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.”
5. When an assurer becomes obliged to make an assurance of support payment, the debt becomes a debt due to the Commonwealth. As with other Social Security debts that may arise, an assurance of support debt may be waived (in special circumstances) or written-off. Section 1237AAD of the Act reads:
“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 a 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.
Note 1:Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
Note 2:This section has effect subject to section 1237AAE in relation to an assurance of support debt.”
background
6. The background to this case is complicated. The Assurance signed by the applicant on 16 November 2005 included a statement made by him which was expressed in the following terms:
“I am required to provide sufficient direct or indirect financial assistance to the person(s) listed in the Application [Ms Ramirez and her son, Jaime Antonio Cardell Lizana] 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 to the Australian Government the full amount of any Centrelink payments that are affected by an Assurance of Support paid to any person(s) listed in the Application [Ms Ramirez and her son, Jaime Antonio Cardell Lizana] to provide an Assurance of support that I have signed.
…
The Assurance of Support remains in force for a period of 2 years for all visa subclasses, except subclasses 143 and 864, for which the period is 10 years. This period begins on the day the person(s) for whom I have given the Assurance of Support [Ms Ramirez and her son, Jaime Antonio Cardell Lizana] 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 [Ms Ramirez and her son, Jaime Antonio Cardell Lizana] is/are granted the visa to which the Assurance of Support applies, the Assurance of Support cannot be withdrawn or cancelled; 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, including my death, or a breakdown in the relationship between myself and any person(s) for whom I have given an Assurance of Support.”
7. The Assurances given by Joao and Carlos were both accepted by Centrelink. It appears Carlos was initially reluctant to agree to an Assurance himself, on the ground that his brother had only recently met Ms Ramirez and was still emotionally unstable after the breakdown of his previous marriage. Carlos only agreed to give an Assurance after repeated requests from Joao, and because his brother’s income was not sufficient for his Assurance to be accepted without a co-assurer .
8. After Ms Ramirez arrived in Australia, the marriage to Joao appears to have quickly deteriorated. Joao made a statutory declaration on 28 July 2006 regarding the pending break-up of his marriage. The declaration reads:
“In January this year, 2006, I married Juana Pabla Ramirez and from there on I lived with my wife and her son. The marriage promises didn’t happen, by that a [sic] mean the marriage vows were never fulfilled. In addition I have been having problems with her son, he doesn’t respect me and she always takes his side, living together has not been harmonious, this marriage was a very big mistake we have a lot of irreconcilable differences. I think she only married me so that she and her son could come and live in Australia. I no longer wish to stay married to Juana Pabla Ramirez and also wish to cease being responsible for her and her son. I have been in a bad relationship before and don’t want to repeat the experience.”
9. On 16 August 2006, Ms Ramirez and her son made claims with Centrelink for Special Benefit. In her claim, Ms Ramirez made the following statement:
“On the 9th of August my husband throw [sic] us of our homes at 474 Grandge [sic] Rd, Fulham Gardens. My self and my son came home from our studies (ESL) at the City. We found out that the house locks have been changed. We waited until late in the night with police assistance to get our personal belongins [sic]. He communicated to DIMIA, on the 28 of July 06, that we were living separately, when we were living together. He did not suggested [sic] to me or my son about this situation. It looks that he had planned all this behind our backs. We fear for our lives. He had make [sic] many threats to both of us, and he is capable of carring [sic] out his threats.”
10. On 9 August 2006, a domestic violence report was made by Ms Ramirez to the SA Police Department. The narrative in the report reads:
“The victim in this incident has a son Jaime Antonio CARDELL LIZANA dob 2/1/83 from a previous relationship. Victim married Joao Eutiquio PICO in January 2006 after a relationship commencing in May 2004. Before marriage the victim and her son were granted temporary visa to remain in Australia in about Nov 2005. PICO applied to Immigration as sponser [sic] for victim and her son for permanent residency.
Since marriage, a domestic violence situation has developed involving verbal abuse and controlling behaviour including use of telephone, supply of money for day to day purposes and restrictions on visiting friends or relatives. To further exercise his control, PICO apparently wrote to Immigration on 28/7/06 declaring falsely that he and victim were now not living together when victim and he moved address to current location. Victim and son still live with PICO at new address where all there [sic] personal possessions are kept. Victim reported to Henley Beach Police on 4/8/06 that PICO had locked them out of the house. (PIR 07/D04283 refers).
Victim attended APS today with son and a friend fluent in English to report that today at about 12.00 pm today when she and son returned to the address from English speaking lessons that PICO once again had locked her and her son from the house and changed the locks again, the second time in 4 days. She is now in a position due to this man’s behaviour that she has no money, is unable to work because of visa restrictions, has received a letter from immigration indicating that her citizenship application will be declined and most immediately, has no where to live. Refer to investigation diary re friends details who will assist victim where she can.”
evidence
Evidence of Joao Pico
11. Joao’s evidence was given by telephone through a Portuguese interpreter, Mr Jose Marques. He acknowledged that he had signed an Assurance for Ms Ramirez. She had a business in Chile and a home there. Her daughter lived in the home and paid her mother rent. He did not know what income Ms Ramirez had in Australia. Her sister lived here and Ms Ramirez may have received money from her. He said he had kicked her out of their home because he was being robbed by Ms Ramirez and her son. He said Ms Ramirez had also stolen goods from him – a camera, a dryer and bed linen. Ms Ramirez had brought nothing with her from Chile. He said, after six months marriage, he could see what was coming. She would not work and he was concerned about the situation he had got himself into. He said he had not been violent to Ms Ramirez. He had kicked her out of the home because things were missing and her son had taken things.
12. In cross-examination, Joao said that a restraining order had been taken out against him by his first wife. He had assaulted his wife because he had found her with another man. He had gone to gaol as a result, but only on one occasion. When questioned further, he admitted that he had been in gaol twice. He had breached an electronic wrist recorder and had been sent back to gaol. He had been in gaol from 13 May to 27 May 2004 and from 16 June to 14 July 2004.
evidence of mr lizana
13. Mr Lizana’s evidence was given through a Spanish interpreter, Ms Graciela Vicente. His evidence was that his mother had operated a shop in Chile selling natural products. He had met Joao in Chile in 2004 when he had gone there to visit his mother. When he came to Australia in January 2006, Joao seemed to be a good person. He wanted Mr Lizana to come to Australia. He was looking forward to coming to Australia himself and to doing something different. However, Joao changed completely after a few months. He had used his mother and himself as a “package”, then kicked them out of their home. He became violent and restricted his mother from visiting her sister. He said he did not steal things from Joao, who had kicked him and his mother out of the home twice. He had changed the locks to the home twice, but on the second occasion the police had arrived. When the locks had been changed the second time, Ms Ramirez and Mr Lizana had been left out in the street. When referred to the police incident report (Exhibit R4), he said he had little in the way of income and assets. When he left the home at Fulham Gardens, he was not working and was studying English. He said the information contained in his claim for Special Benefit (Exhibit R2, T33) was correct. Neither he nor his mother had any income or assets when they arrived in Australia.
14. In cross-examination by Mr Sandell, Mr Lizana said that his mother held the house in Chile at the time of her separation from Joao. The claim for Special Benefit had been completed by his mother, with the assistance of Ms Coralia Dominguez at the Migrant Women’s Support and Accommodation Service. He said that Joao had bought a car for him (a 1986 vehicle) to look for work. The vehicle was in Mr Lizana’s name and he thought the car was his. The car was only valued at about $1,000. He said the house in Chile was a family home. He was not sure whether the house belonged to his mother or his father.
Evidence of Ms Ramirez
15. Ms Ramirez’ evidence was given through the Spanish interpreter, Ms Graciela Vicente. Ms Ramirez said that she had run a health food shop in Santiago. She had owned the business, but only rented the shop. She had sold the business in December 2005 (Exhibit R6). When the business was sold, she did not receive much by way of proceeds. Anything she had was used for the education of her children. She first met Joao in 2004 when she came to Australia for a six months holiday. He asked her to come to Australia to marry him, which she did in January 2006. She said Joao was originally a caring person. She wanted to get married and bring all her children here. For the first three months, everything was fine. Then problems started. He did not like her food or her vacuuming of the carpets. He wanted to do these things himself. He cut off the telephone and did not let her visit anyone. He would become upset if she was late coming home from her studies. She said that, because of the behaviour of her ex-husband and the fact that her English was not good, she found it difficult to communicate. She was studying English at college to help her understand the language. She saw Ms Coralia Dominguez at the Migrant Women’s Support and Accommodation Service for help. In August 2006, Joao changed the locks at their home and left them outside. All they had were the clothes they were wearing. It was winter and they were forced to stay outside until midnight, so that they could get their other things. Ms Dominguez had helped them by arranging for a report to be given to the police. When asked about her claim for Special Benefit, she said that the signature on the claim was hers, but she had been assisted in filling out the claim by Ms Dominguez. The monies shown in the bank account were not hers, but belonged to Joao.
16. In cross-examination by Mr Sandell, although her claim for Special Benefit showed that she did not have any assets in Australia or overseas, she confirmed that she still had a part interest in the family home in Chile. She said that, when coming to Australia, there was no need for her to bring money into the country. If anything happened, her assurers would be responsible. She said she had no money in Australia or in Chile. She confirmed that she had travelled overseas in November 2008. Her mother was 96 years of age and was seriously ill. During the period from August 2006 to January 2008, the cost of her food, bills and accommodation was paid for by Centrelink. She could not recall how much she received from Centrelink each week. After Special Benefit, she received Widow Allowance. She paid $140 per week rent, but received no other support. She lives with her son now and they share expenses. When she came to Australia, she did not have much money. She cannot remember the amount involved, but it was only small.
Evidence of Ms Coralia Dominguez
17. Ms Dominguez described herself as a Welfare Worker. She saw Ms Ramirez and her son after they had been locked out of their home when the police became involved. She consulted with Ms Ramirez in June 2006 and then again in August 2006. To her knowledge, Ms Ramirez was the victim of domestic violence from her then husband, Joao. She said Ms Ramirez had suffered traumatic experiences as a result of her husband’s conduct. She had no money and no rent. Ms Dominguez said she assisted Ms Ramirez in applying to Centrelink for support. She helped her complete the claim for Special Benefit. To her knowledge, Ms Ramirez received no income. She had completed question 22 in the claim form (Exhibit R2, T32 at page 164), but had misread the question. Ms Ramirez had, in fact, lived and worked outside Australia prior to her arrival from Chile. She also understood that Ms Ramirez had a house in Chile, but derived no income from the property.
18. In cross-examination, she said she assisted Ms Ramirez in completing her claim for Widow Allowance (Exhibit R2, T43). She acknowledged that she had not carefully read questions 1 and 2 in Part B of the claim form. Ms Ramirez had been born outside Australia and had lived in Chile before arriving in Australia. In relation to the SA Police incident report (Exhibit R4), she was not aware of the report. She said she had helped Joao’s first wife in relation to a domestic violence report, but had not done so in the case of Ms Ramirez.
Evidence of Daniele Kelly
19. Ms Kelly said that she had been with Centrelink for seven years. She was currently State Language Services Co-ordinator and was responsible for obtaining interpreters for the Centrelink registry. She had previously been involved in assessing Special Benefit claims and had assessed the claim of Ms Ramirez. She had confirmed the existence of the Assurance in Ms Ramirez’ case with the AoS Help Desk. Formal letters had been sent to the assurers (Joao and Carlos), along with telephone contacts. The Assurance was to start from the time contact had been made. Both Joao and Carlos had been contacted, and she said that she herself had spoken to Joao. He was not prepared to contribute to Ms Ramirez’ support. She said there would have to be a reason for an assuree to receive help. In the case of Ms Ramirez, she had been the subject of domestic violence by her husband. She said she had not processed the Assurance for Ms Ramirez, which had been processed by another Centrelink officer. She said Special Benefit could be paid long-term or short-term. The term of the benefit would depend on whether the claimant had funds of over $5,000 available. Ms Kelly said that this level of funds was not available to Ms Ramirez. She said she had reviewed Ms Ramirez’ position when the Assurance debt had been raised. She was referred to the decision review (Exhibit R2, T51 at page 237), which relevantly reads:
“This decision is affirmed because, at the time of claim, Mrs Ramirez was eligible for Special Benefit and satisfied all qualification criteria. In regards to Mr Pico[‘s] first point, Mrs Ramirez was eligible for Special Benefit while in her NAWP period because she was experiencing a dramatic change of circumstances.
According to Mrs Ramirez and Social workers reports (Coralia from Migrant Women’s Support Accommodation Service Inc. and Karen Zollo from Centrelink) there was domestic violence, her husband threw her out of the family house and changed the locks, Police assistance was then required to access her personal belongings.
Although it was obvious that due to the domestic violence, it was unreasonable for Mrs Ramirez to accept financial help from assurers, Centrelink’s social worker, Karen, contacted by phone both assurers and they confirmed that they were NO LONGER willing to financially support Mrs Ramirez. Because of the character of the extreme situation and all the reasons listed above, the customer was quite entitled to lodge a claim for Special Benefit within the NAWP and while under Assurance of Support.
In regards to Mr Pico[‘s] second point (Assets), the supporting bank statement and SU004 form attached in Mrs Ramirez’s file, clearly show that according to Mrs Ramirez there was [sic] no assets to declare and stated to be in financial hardship with no access to liquid assets.”
20. Ms Kelly said that she had a poor memory about Carlos’ position. He was unwilling to get involved in the process and it was necessary for her to speak to him through his wife. As to the status of the Assurance debt from time to time, she said that both Joao and Carlos were advised of the amount involved as it accumulated. When asked about any evidence of the financial status of Ms Ramirez, Ms Kelly said that she had sufficient evidence that Ms Ramirez had no funds available and that, in her view, she did not need any further evidence. When asked by Mr Sandell whether she knew about a fraud report that had been prepared for Ms Ramirez, she said that she was not aware of any such report. She was not aware of any complaints in relation to Ms Ramirez and there was no new evidence of any suggestion of fraud on her part.
Evidence of Mr Carlos Pico
21. Carlos described the Assurance for Ms Ramirez as a “set-up”, and he had reservations about the process at the time. He asserted that he had been “conned” not only by Ms Ramirez, but also by his brother. He said that after Ms Ramirez had left his brother, he had called her to discuss the situation and she had said:
“Don’t worry and, you know, whatever goes we pay for.”
When questioned by the Tribunal, Carlos admitted that he had received a letter from the respondent advising him that Ms Ramirez had been granted Special Benefit. However, he said he was not aware that, if there had been a breakdown in the relationship between Ms Ramirez and his brother, he would have to contribute under the terms of the Assurance. He felt it was unfair that, when Ms Ramirez left his brother, he had to pay for the Centrelink benefits she received. He had signed the Assurance, but was not aware of his obligations. He was challenged by Mr Visser in cross-examination, who referred him to his letter (in Exhibit A1) dated 21 September 2006, which read in part:
“…
In October 2005, my brother asked me to provide an Assurance of Support for the application for a visa by Ms Ramirez. It was a very difficult decision to agree to do this as I did not know Ms Ramirez and I was very concerned then that she was “using” my brother for both financial gains and to get her an Australian visa. I felt “pressured” to sign the Assurance as he was family and he had acted as my sponsor in 1990. My wife refused to sign the Assurance as she also was convinced that Ms Ramirez’ motives were not honourable and that the relationship was not based on love. I knew what was involved in doing an Assurance of Support as I had previously done the same for my niece (Louisa Pico, Joao’s other daughter who had remained in Portugal). …”
22. When asked about Ms Ramirez’ financial position at the time of the breakup, he said he had heard she was “in good shape” with finances. She had a business in Chile and was still running it. She also owned a house in Chile, where her daughter and her other son lived. Once Special Benefit had commenced to be paid to Ms Ramirez, his daughter had lodged a fraud report with Centrelink. When asked by the Tribunal about the information that was used to make the fraud report, he said:
“The information was coming with other people they knew in the family and she had money and she was just prepared to come here because – prior she start looking around for my brother and she was looking around for other men and she had idea to come here because she had a sister and what – that’s when I start – really find really strange is why her sister never come up with saying anything or to come under our wing or whatever, you know what I mean, because I did know she had a sister here and that’s why when all the information from people who know them start coming out and say don’t be surprised that your brother just been probably the most stupid crazy because she tried to muck around with whatever she had to have a chance to.” [Transcript, page 7]
consideration
Does the applicant have an Assurance of Support debt and, if so, what is the amount of the debt?
23. The SSAT found that there was no dispute that Carlos and Joao gave a joint Assurance in relation to Ms Ramirez and her son, Jaime Antonio Cardell Lizana. On the evidence before it, the Tribunal is satisfied that the joint Assurance was so given on 7 November 2005 and 16 November 2005. The Special Benefit payments made to the assurees during the period 16 August 2006 to 5 January 2008 totalled $18,976.05. Notification of the amount of the assurance of support debt was given to Carlos by letter dated 29 January 2008 (Exhibit R1, T16 at pages 54-56). The Assurance has been accepted by the respondent and, pursuant to s 1061ZZGG(2) and s 1227(1) of the Act, the amount of $18,976.05 is a debt due to the Commonwealth. The debt has arisen because Carlos made a formal application to be the assurer of Ms Ramirez and Mr Lizana. To support his application, he supplied appropriate financial details. He attended an application interview, was verbally informed of his obligations and then he agreed in writing to support Ms Ramirez and Mr Lizana.
24. For the applicant, Mr Sandell submitted that the claim for Special Benefit made by Ms Ramirez had not been correctly assessed by the respondent. The Tribunal notes that ss 729, 732, 733 and 734 of the Act require the respondent to undertake an assessment before Special benefit can be granted to an applicant. Ms Ramirez and Mr Lizana each completed and lodged with the respondent claims for Special Benefit on 16 August 2006 (Exhibit R2, T32 and T33). It appears Ms Ramirez and Mr Lizana were assisted by Ms Coralia Dominguez in completing the claims. Evidence was provided by Ms Ramirez and Mr Lizana to support their claims, including bank statements showing nil balances. It appears both Carlos and Joao were interviewed by a social worker by telephone and they both indicated that they were not willing to provide support to Mr Ramirez and Mr Lizana. The claims for Special Benefit were assessed by Ms Daniele Kelly on 30 August 2006 (Exhibit R2, T38 at page 199). Based on the evidence before it, the Tribunal is satisfied that Ms Kelly conducted a proper assessment of the claims for Special Benefit made by Ms Ramirez and Mr Lizana.
25. Before the SSAT, it was contended on behalf of the applicant that Ms Ramirez had fraudulently obtained a visa by agreeing to marry Joao. The contention, as it was recorded in the SSAT’s decision, was as follows:
“Essentially, the argument was that the decision to recover money from Mr Pico was wrong, because the claims ought not have been granted. Taking the written and oral submissions to Centrelink and the Tribunal as a whole, the assertion was this:
Ms Ramirez had devised and enacted a plan to become an Australian resident and receive Centrelink payments by
·fraudulently obtaining a visa,
·agreeing to marry and marrying Mr Pico’s brother solely so that she could get the visa (without his knowledge of that motive),
·fraudulently alleging domestic violence and obtaining an AVO to strengthen her case, and to enable her to claim from Centrelink; and
·falsely alleging financial hardship to Centrelink to access social security payments.”
The SSAT responded to the contention for the applicant in the following terms:
“The Tribunal asked how Mr Pico knew these things to be the case; he said that he had been told these things by other people. Mr Sandell conceded that the evidence they had was anecdotal only. Neither he nor Mr Pico could suggest any specific objective evidence that could be sought by the Tribunal or by Centrelink.”
26. The position in which the Tribunal finds itself is much the same as the SSAT. Allegations of fraudulent conduct and false statements have been made for the applicant. However, the evidence in support of these allegations has again only been anecdotal. There has been no objective evidence which proves, to the required civil standard, that Special Benefit and Widow Allowance should not have been paid to Ms Ramirez and Mr Lizana. Carlos’ evidence was that his daughter had lodged a fraud report and had discussed the report beforehand with Centrelink. However, he was unsure whether a written fraud report had been prepared. According to Mr Visser, the respondent had no record of a written fraud report being prepared, based on information provided by Carlos’ daughter. Having regard to the evidence, the Tribunal is not satisfied that fraudulent conduct occurred or that false statements were made. The Tribunal is also not satisfied that a fraud report was made to the respondent in respect of Ms Ramirez.
If there is an assurance of support debt, can all or part of the debt be waived or written-off?
27. Mr Sandell submitted that the Assurance debt should be waived under s 1237AAD of the Act. He argued that there were special circumstances that made it desirable for the debt to be waived and it was more appropriate to waive than to write-off the debt (s 1237AAD(b) and (c)). However, Note 2 to s 1237AAD stipulates that the waiver of an assurance of support debt must be subject to s 1237AAE of the Act. Section 1237AAE relevantly reads:
“1237AAE Extra rules for waiver of assurance of support debts
(1)This section affects waiver under some other provisions of this Part of an assurance of support debt in connection with an assurance of support given by one or more persons (the assurers), by setting out extra rules limiting the circumstances in which waiver may occur and the extent of waiver.
(2)The Secretary may waive under section 1237AAD the right to recover all or part of the debt only if the Secretary is satisfied that the waiver is justified on grounds other than one or more of the assurers being unaware of the effect of section 1061ZZGG, or of regulations made under the Migration Act 1958, in connection with the assurance.
…
(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.
…”
28. Section 1237AAE(1) makes it clear that s 1237AAE sets out extra rules which limit the circumstances in which waiver may occur and the extent of waiver.In the Tribunal’s view, s 1237AAE(4) is not satisfied in the present case. Sub-section (4) provides that, where two or more persons are joint assurers (as is the case presently with Carlos and Joao), waiver of an Assurance debt can only occur if the Secretary (and the Tribunal, upon review) is satisfied that the debt “cannot be recovered from any of the assurers”. On the evidence available, the debt is currently being recovered from Joao, who the Tribunal understands has the financial means to gradually repay the debt. As the Assurance debt can be recovered from at least one of the assurers under s 1237AAE(4), it is unable to be waived under s 1237AAD of the Act.
29. As mentioned above, it has also been contended for the applicant that Ms Ramirez made false statements and representations to Centrelink. If these contentions are correct, Carlos’ Assurance debt cannot be waived under s 1237AAD, as the debt has resulted “wholly or partly from the debtor or another person [that is, Ms Ramirez] knowingly .… making a false statement or a false representation …” (s 1237AAD(a)(i)). This approach is supported in the decision of Dr E K Christie, Member in ReNJDY and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1255. The decision in Re NJDY also supports the position taken by the Tribunal in relation to the allegations of fraudulent conduct and the civil standard evidentiary requirement.
30. As to write-off of the debt, the Tribunal notes the provisions of s 1236(1A) of the Act which read:
“1236 Secretary may write off debt
…
(1A)The Secretary may decide to write off a debt under subsection (1) 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”.
In the Tribunal’s view, all of the sub-paragraphs in s 1236(1A) are capable of applying. In particular, the Tribunal is satisfied that Carlos has the capacity to repay the debt due to the Commonwealth.
summary
31. The applicant has an assurance of support debt in the amount of $18,976.05. No part of the debt can be waived under s 1237AAD of the Act. On the evidence, no part of the debt may be written-off under any other provision of the Act.
decision
32. The Tribunal affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .............J Coulthard.........................................
AssociateDate of Hearing 16 February 2010
Date of Decision 13 May 2010
Advocate for the Applicant Mr G SandellAdvocate for the Respondent Mr C Visser
Centrelink Advocacy Branch
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