Rucker and Child Support Registrar

[2008] AATA 557

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 557

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2639

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEREK RUCKER

Applicant

And CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date26 June 2008

PlaceSydney

Decision

The decision under review is affirmed.

The oral reasons for decision have been transcribed by Auscript and are furnished to the Applicant and to the Respondent as are the reasons for the Tribunal’s decision.

.............................................

Ms G Ettinger
  Senior Member

CATCHWORDS

CHILD SUPPORT – departure authorisation certificate – departure prohibition order currently preventing applicant from leaving Australia – whether departure authorisation certificate should be issued – the decision under review is affirmed

Child Support Assessment Act 1989

Child Support (Registration and Collection) Act (Cth) 1988 – sections 72L and 72M

Koueider and Commissioner of Taxation [2003] AATA 101

Nasrat Eid and Commissioner of Taxation (AAT 12610, 11 February 1998)

Wetzell and Child Support Registrar [2005] AATA 607

REASONS FOR DECISION

26 June 2008	Ms G Ettinger, Senior Member
BACKGROUND

1.      By way of background I note that Mr Rucker is a 42‑year‑old father of two children aged 9 and 11 years.  He holds dual American and Australian nationality, and told me that he has lived in Australia for some 18 years.  He is separated from the mother of his children, who since 2007, lives in Brisbane with them.  Mr Rucker is unhappy about that because he does not see his children as much as he would like to, and says he has spent quite a lot of money on airfares to bring them to Sydney to visit. 

2.      Mr Rucker has been paying child support as calculated under the Child Support Assessment Act 1989, and now has arrears of some $11,000 or $12,000.  He was not sure of the exact amount. 

3. From the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act which were before me as exhibit R1, I note that Mr Rucker has not been making payments in a timely fashion resulting in enforcement action taken by the Child Support Agency.  This resulted further in the Child Support Registrar making a Departure Prohibition Order on 27 May 2008 which prevents Mr Rucker leaving Australia until he has made suitable arrangements to pay his child support debt.

4. On 12 June 2008 Mr Rucker applied to have a Departure Authorisation Certificate issued pursuant to section 72L of the Child Support (Registration and Collection) Act 1988 to which I shall refer as the Act.  His application was refused on 20 June 2008.  That is at T16 in the documents, and Mr Rucker appealed the decision to this tribunal.  He represented himself at the tribunal hearing and the respondent Child Support Registrar was represented by Mr McWhinney.

THE ISSUE BEFORE THE TRIBUNAL

5.      The issue I have to decide is whether to affirm the decision of the Child Support Registrar and refuse to issue a Departure Authorisation Certificate to Mr Rucker, or to vary that decision, or to set it aside and find that Mr Rucker satisfies the requirements under the Act, and that I am satisfied the correct or preferable decision is to permit the issue of a Departure Authorisation Certificate to him. 

MR RUCKER’S EVIDENCE

6.      I have noted that Mr Rucker says he has been unable to pay the child support he should because he lost his job with Sydney Kings with whom he worked from December 2006 to December 2007, and has not been working much since November 2007. He said that even during the time with Kings, the players were not paid regularly. 

7.      He said that he worked for a short time in February 2008 with Energy Exploration International, but that due to regulatory problems, the company could not continue with all its employees, and he lost his job.  He explained that a contact he made at that time, Mr Tim Chapman, has now offered him a job in the gaming industry in the USA.  Mr Rucker’s stated urgency to obtain a Departure Authorisation Certificate is connected with what he understands is a job offer in the USA from Mr Chapman, and his company Interblock.

8.      Mr Rucker tendered a printout of an email dated 26 June 2008 from Mr Chapman to himself which is exhibit A1 before the tribunal.  That purports to discuss the negotiation of salary arrangements and a job description as well as product and sales training which Mr Chapman states is intended to commence on 1 July in the USA. Mr Chapman also discusses the requirement for a police clearance.  Mr Rucker is expecting Mr Chapman to provide an air ticket for him. He told me at the hearing that Mr Chapman was on a flight to Australia arriving that afternoon.  I asked the parties to discuss whether it would be of assistance to have him give evidence later today.  They told me that they would rely on the documentary evidence and Mr Rucker’s evidence. I did not think I needed to hear further from Mr Chapman.

9.      Mr Rucker told me that if he obtained the Departure Authorisation Certificate he seeks, he could arrange to pay $2,000 towards his child support debt before his departure, and pay further money from the USA as soon as he earns money, probably within a fortnight.  He also told me that he applied on 20 June 2008 to have his assessment changed, and understands that will reduce his debt by approximately half. He understands that that decision takes 60 to 90 days to be given to him.

APPLICABLE LAW

10.     Now, moving to the law and its application to the facts, the relevant sections of the Child Support (Registration and Collection) Act 1988 in this case are sections 72L and 72M. The tribunal stands in the shoes of the Child Support Registrar and exercises the same powers as the registrar can in this matter, so that pursuant to section 72L the Registrar or in this case, the tribunal, must issue a Departure Authorisation Certificate if the Registrar, and in this case the tribunal, is satisfied that if the Certificate is issued, it is likely that the person will depart from Australia, and return to Australia within a period that the Registrar considers appropriate, and it is likely that within a period that the Registrar considers appropriate, the Registrar will be required by section 72L(1), to revoke the Departure Prohibition Order in respect of that person and (b), that it is not necessary for the person to give security under section 72M for the person’s return to Australia. The subsection follows:

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.

11. I note from the evidence that Mr Rucker has family law proceedings listed for 24 July 2008. When we commenced the hearing Mr Rucker submitted he could satisfy the requirements of section 72L(2) of the Act, but after some discussion with Mr McWhinney during a short adjournment, he abandoned his previous reliance on that subsection and concentrated on section 72L(3).

12. I note that section 72L of the Child Support (Registration and Collection) Act 1988 sets out the circumstances in which the Registrar must issue a Departure Authorisation Certificate. I am not satisfied that the provisions of section 72L(2) have been made out in relation to Mr Rucker as I would need to be persuaded that it is likely that the Registrar will be required to revoke the Departure Prohibition Order. I am not satisfied of this likelihood.

13. Section 72M is concerned with security for persons’ return to Australia. As there has been no security offered, and Mr Rucker tells me he has no assets either in the USA or in Australia, that section does not apply. Accordingly, I move then to consider section 72L(3) of the Act which provides that:

(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.

14.     There is no argument Mr Rucker has offered no security.  I have noted the case of Koueider v Commissioner of Taxation, a 2003 case where a very similar provision under the Taxation Administration Act (Commonwealth) 1953 provides for a similar type of Certificate to allow a person who owes a tax debt to leave Australia.  In that matter the tribunal indicated that there is an obligation on the applicant to establish that the decision under review should be set aside and the tribunal is to be satisfied as to each of the prerequisites contained in the legislation.

15.     In Koueider the applicant had not sought to provide any cash security but was offering the Commissioner retention of the passports of his de facto wife and children. I was also mindful of the case of Nasrat Eid v Commissioner of Taxation, a 1988 case.  That decision also raised the issue of security, and in both Koueider and Eid, the decision of the registrar was affirmed by the tribunal, and no Departure Authorisation Certificate was given.

16.     Mr McWhinney also raised the case of Wetzell v Child Support Registrar, a 2005 case in which a Departure Authorisation Certificate was issued with conditions.  He submitted that that case could be distinguished because it considered the issue of actual security in monetary terms and the adequacy of the sum offered.  I agreed as there was no question of security being given by Mr Rucker.

17. Now, pursuant to section 72L(3)(b) of the Act, if the person is unable to give security, and that is Mr Rucker’s case, I have already said that the Certificate may be issued on humanitarian grounds. Provided I can be satisfied, the Certificate must be issued.

18.     Mr Rucker has raised humanitarian grounds, giving evidence of his father and mother’s ill health.  He tendered printouts of emails from himself to his father, and a reply signed “Dad” in which his father informs him on 9 March 2008 that he had to have a heart catheterization the previous week, and informing his son he did not have a heart attack, but was grateful that severe narrowing of the blood vessels was discovered in such a check. An email purporting to be from his mother informs Mr Rucker on 18 April 2004 that she wants to contact her cardiologist as she will require a coronary angiogram soon. 

19.     I asked Mr Rucker questions about the danger his parents may be in due to medical problems. Mr Rucker told me that African Americans, as he and his parents are, have a greater propensity than other races to suffer heart problems. 

20.     However, having heard the evidence, I am not satisfied that the provisions in the Act relating to humanitarian grounds have been satisfied. Mr Rucker’s parents do not seem to be in any imminent danger in regard to their health, and in any case live in a State different from the one which is his intended destination. 

21. Further, looking at the other subsection, there was scant discussion of what detrimental to Australia’s interests in section 72L(3)(b)(ii) means, and I could not be satisfied that this subsection was relevant to Mr Rucker’s situation.

22. Accordingly, I do not find that I am satisfied to the requisite standard that the provisions of section 72L of the Act have been satisfied, and I cannot therefore authorise the issue of a Departure Authorisation Certificate for Mr Rucker.

DECISION

23.     My decision is the tribunal affirms the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms G Ettinger.

Signed:         ................[Sgd].........................
  Associate

Date of Hearing  26 June 2008
Date of Decision  26 June 2008
Applicant  Mr Derek Rucker
Representative for the Respondent          Mr Ken McWhinney