Rucker and Child Support Registrar

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.

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Ms G Ettinger
  Senior Member

(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…