Sarmini and Secretary, Department of Family and Community Service S

[2003] AATA 190

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 190

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2002/1463

GENERAL DIVISION )

Re Adel Sarmini

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date5 February 2003

PlaceSydney

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2002/1463

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Adel Sarmini

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date              5 February 2003

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 affirms the decision under review.

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

Ms SM Bullock      

Senior Member            

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Application for Single Rate – Where Assurance of Support Given

LEGISLATION

Social Security Act 1991 (Cth) s24

AUTHORITIES

Re Kaddous and Secretary, Department of Family and Community Services [1999] AATA 183; (1999) 56 ALD 583

Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531

Cocks v Centrelink [2000] FCA 1248; (2000) 32 AAR 360

Re Hawkins and Secretary, Department of Social Security (1996) 24 AAR 153; (1996) 44 ALD 651

Re Secretary, Department of Social Security and Porter (1997) 48 ALD 343

REASONS FOR DECISION

Ms S M Bullock, Senior Member

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of Senior Member SM Bullock.

Signed:         
          ....................................................................................……………………………….

Associate

Date of Hearing  5 February 2003

Date of Decision  5 February 2003

Representative for Applicant      Self-Represented        

Representative for Respondent   Ms H Schuster, Departmental Advocate

DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2002/1463
By MS S.M. BULLOCK, Senior Member
SARMINI and SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
SYDNEY, WEDNESDAY, 5 FEBRUARY 2003

MS BULLOCK:   This is Tribunal matter N2002/1463.  It is in relation to the Applicant, Adel Sarmini, and the Respondent in this matter is the Secretary, Department of Family and Community Services (“the Department”).  This is an application for review to the Administrative Appeals Tribunal which I will refer to for the rest of this decision as the Tribunal.  The application for review was made by the Applicant, Mr Adel Sarmini, in relation to a decision made by the Social Security Appeals Tribunal (“the SSAT”) on 29 August 2002.  That decision appears in the T Documents at T2.

The SSAT decided that there was not a special reason to exercise the discretion contained within section 24 of the Social Security Act 1991 to not treat Mr Sarmini as a member of a couple. Hence the Disability Support Pension received by Mr Sarmini was to continue being paid at the married rate. The SSAT decision affirmed or agreed with a decision of an Authorised Review Officer (“ARO”) of the Department. That decision was dated 30 April 2002 which appears at T20 in the T Documents.

The original decision refusing to pay Disability Support Pension at the married rate was made on 25 January 2002 and is found at T15. A hearing was held before the Tribunal in Sydney on 5 February 2002. Mr Sarmini was self-represented and provided oral evidence. The Respondent, the Department, was represented by Ms Hannelore Schuster. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and will be referred to as the “T Documents” comprising documents T1 through to T22. A number of exhibits were also tendered and these are:

Exhibit A1 - Letter from Dr P.J. Burnett dated 24 August 2001.

Exhibit A2 - Notice of Suspension of Licence dated 26 November 2002.

Exhibit A3 - AGL accounts for the dates 23 October 2002, 4 December 2002 and 7 January 2003.

Exhibit A4 - Documents from the Salvation Army Moneycare of various dates.

Exhibit A5 - Discharge Summary in relation to Ms Mouna Kzibra dated 5 December 2002.

Exhibit A6 - Bundle of receipts in relation to what Mr Sarmini described as chemists costs for medication and also receipts in relation to a fortnightly payment of a fine.  Again there are various dates.

Exhibit A7 - Health Summary Sheet from Mr Sarmini's current general practitioner dated 3 February 2003.

Exhibit A8 -  Report from Dr M. Sequeira dated 24 January 2003.

Exhibit A9- Summary of outpatient contact with the Department of Emergency Medicine dated 31 January 2003.

Exhibit A10 - Results of diagnostic tests by Hoseno Clinical Chemistry company.

Exhibit A11 - Centrelink's Income Statement for Mr Sarmini dated 30 January 2003.

Exhibit A12 - Commonwealth Bank Savings Account extract.

Then there are exhibits for the respondent:

Exhibit R1 - The Respondent's Statement of Facts and Contentions dated 24 January 2003.

Exhibit R2(a) – A discretionary assurance of support for Mouna Kzibra.

Exhibit R2(b) - A blank but legible copy of Exhibit R2(a).

Those are the exhibits in this matter. 

The legislation in relation to this matter is that contained in section 24 of the Social Security Act 1991. I will refer to that Act as “the Act” from now on. Section 24 of the Act is the specific provision relevant to this matter and deals with a person being treated as not being a member of a couple. Section 24(1) states:

“ 24(1) Where:

(a)a person is legally married to another person; and

(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and

(c)the Secretary is satisfied that the person should for a special reason in the particular case not be treated as a member of a couple; 

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
…”

The issue in this matter is whether or not the discretion contained within section 24 of the Act can be applied in Mr Sarmini's circumstances. I will now go to the evidence and submissions of Mr Sarmini.

Mr Sarmini was born in Syria on 20 August 1945.  He came to Australia in about 1968.  Mr Sarmini was married to Mouna Kzibra in Syria on 28 January 2000.  The reference for that is T7, page 27.  Mr Sarmini had previously been married but was divorced in about 1997, he told the Tribunal.

Mr Sarmini had been away from Australia in Syria for one year returning to Australia on 25 March 2000 but without his wife who remained in Syria.  Mr Sarmini continued to receive at that time a New Start Allowance which was at the single rate.  Subsequently, Mr Sarmini was granted a Disability Support Pension on 12 January 2001 at the single rate.  On 24 October 2001, Ms Kzibra, that is, Mr Sarmini's new wife, arrived in Australia and the reference for that is T9, page 54.  Mr Sarmini informed Centrelink of his wife's arrival and of his status.

An assurance of support was signed in respect of Ms Kzibra by Mr Selim on or about 18 January 2001.  Mr Sarmini told the Tribunal that Mr Selim was a friend of his who he had helped out when Mr Selim was a student at an arts college in Sydney.  Mr Selim had agreed to help Mr Sarmini by signing the assurance of support for Mr Sarmini's wife.  Mr Sarmini stated that Mr Selim had agreed to this because of the assistance previously provided to him by Mr Sarmini.  Mr Sarmini further stated that he promised not to ask for financial assistance from Mr Selim and that that was the basis of Mr Selim signing the assurance of support.

Mr Sarmini further stated that Mr Selim did tell him that he would assist Mr Sarmini and his wife from time to time with about $200.00 or so if that was needed.  Mr Sarmini has never asked Mr Selim for money because he made a promise that he would not do so.  He stated that it is a matter of pride that he has not asked for money although he has asked for money from other friends.  While Mr Selim had signed the document agreeing to help Ms Kzibra, the promise between Mr Selim and Mr Sarmini was more important, Mr Sarmini informed the Tribunal.

Mr Sarmini also stated that he knew of the workings of assurances of support because he himself had signed one in relation to another person in about 1983.  Mr Sarmini informed the Tribunal that he also was aware that any money he had paid to the assuree would be a legitimate business tax deduction for him.  He had not discussed this particular matter with Mr Selim but felt sure that Mr Selim would know about it.  It is relevant at this point to read what the declaration contains which Mr Selim signed on the assurance of support.

This is contained at Exhibit R2 and I will read the declaration which was signed by Mr Selim.  The final page of the assurance of support contains the declaration.  It is headed "Commonwealth of Australia Statutory Declaration” and the name inserted at that point on the assurance of support is Shadee Selim and the address is there as is the occupation which is lecturer.  It is signed as I had earlier said on what appears to be 18 January 2001.  The assurance of support says that “I…[that is, Shadee Selim] do solemnly and sincerely declare”, and I will read the relevant declaration:

·     I understand to provide sufficient direct or indirect financial assistance to the person or persons covered by this assurance to ensure they will not rely on any form of Australian Social Security benefit as listed below.

·     I undertake to repay to the Commonwealth the funds paid where any Special Benefit, New Start Allowance, Partner Allowance, Widow Allowance, Mature Age Allowance, Parenting Payment to a Member of a Couple, Youth Allowance, Austudy Payment or Crisis Payment is paid under the Social Security Act 1991 to a person covered by this assurance during the period for which the assurance of support is given.

·     I understand that Centrelink, on behalf of the Department of Family and Community Services, may use its debt recovery powers under the Social Security Act 1991, or that action may be taken in a court to recover from me such funds as a debt due pursuant to the Migration Regulations.

·     I understand that the support of a person covered by this assurance is defined in the Migration Regulations.

·     I understand and agree that the period for which this assurance of support is given is a period of 2 years, commencing from the date of entry to Australia of the persons granted migrant visas overseas or the date of grant of permanent residence visa to persons in Australia covered by this assurance.

·     I understand that my undertakings in this assurance cannot be withdrawn by me after persons covered by this assurance are granted their visas.

·     The information supplied on this form and any attachments is complete, correct and up to date in every detail. I make this solemn declaration by virtue of the Statutory Declarations Act 1959, and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.

And then there is the signature.  Returning to the decision, when Ms Kzibra was coming to Australia, Mr Sarmini thought his wife would be able to obtain a job teaching in an Arabic school.  He made no inquiries about this possibility before his wife arrived.  Once in Australia Mr Sarmini noted that he and his wife were provided with advice that it would be better if Ms Kzibra learned English first and then tried to obtain a teaching position.  Ms Kzibra is not working and has no family in Australia Mr Sarmini informed the Tribunal.  He further noted that his wife will be undertaking a TAFE course to learn English in the very near future.

Mr Sarmini had also expected at the time his wife was going to come to Australia that his eldest son would be able to provide some financial assistance.  Unfortunately that son is no longer employed.  Mr Sarmini's youngest son is currently in gaol.  He has a young daughter, 14 years old, who currently lives with Mr Sarmini's former wife.  Mr Sarmini knew, he told the Tribunal, that he could not in normal circumstances obtain any money from the government in relation to his wife's financial needs when she first arrived in Australia. 

Mr Sarmini told the Tribunal that he is in very poor health.  His general practitioner has provided a health summary, which is contained at Exhibit A7, which details his current health problems of ischaemic heart disease, hyperlipidaemia, bilateral arthritis of the shoulders, multi level cervical and lumbar disc degeneration, generalised anxiety and unstable angina.  Mr Sarmini takes extensive medication, 12 different types being listed by the general practitioner ranging from medication for his heart, pain killers for his lumbar and cervical problems and angina medication.

Financially, Mr Sarmini receives approximately $195.00 in Disability Support Pension per fortnight although the SSAT noted that Mr Sarmini received $235.00 per fortnight.  Mr Sarmini told the Tribunal that he normally pays $98.00 per fortnight in rent to the Department of Housing.  Because of a computer error in relation to his rental he has had to pay a further $10.00 and this will continue for some time as an extra payment.  Mr Sarmini provided many receipts to indicate his medical expenses, to indicate his difficulties in paying utility costs such as the gas bill and also his repayment of a fine.

He has had to borrow money from friends and owes one particular friend an amount of $11,000.00.  Mr Sarmini also informed the Tribunal that he has obtained assistance from a number of charitable organisations including a neighbourhood centre, St Vincent De Paul and the Salvation Army.  In relation to practical monetary support, Mr Sarmini stated that he is only able to obtain financial assistance from these various organisations once every three months.  He has obtained assistance in this regard in relation to buying food and for bills such as the gas and electricity.

Ms Kzibra has some medical problems herself and Mr Sarmini referred to his wife's arthritis.  There have been additional costs for medication in recent times for her. The total medication bill is between approximately $30.00 to $35.00 per fortnight.  Mr Sarmini told the Tribunal that he is drowning in financial problems and is very anxious and worried.  He and his wife live fortnight to fortnight.  They spend their money in paying bills and buying food.  Mr Sarmini and Ms Kzibra, Mr Sarmini stated, are virtually prisoners in their own home.  Once they receive the fortnightly cheque they will spend it very quickly and then for at least the last week and sometimes more prior to the new cheque arriving they have no money to do anything other than to stay at home.

Mr Sarmini acknowledged that Ms Kzibra had applied for a Special Benefit but had then withdrawn it because of the impact this might have on Mr Selim in relation to him having signed an assurance of support.  There was some confusion on Mr Sarmini's part in that he believed that Mr Selim had signed a document at a Centrelink Office, stating that he could not provide financial support for Ms Kzibra.  This document has not been found, however..  Mr Sarmini also provided evidence which was to the effect that Mr Selim said that he could help financially in some amounts from time to time. 

Mr Sarmini submitted that he is being punished for telling the truth about his wife.  He stated that he knows of many circumstances where people are not working and have not declared their marital status or their true circumstances and are consequently receiving money to which they have no entitlement.

Mr Sarmini acknowledged the statement in his application for review at T1, page 2 that if he had known of the difficulty he would experience in obtaining financial assistance at the single rate by his declaring that he and his wife were married, then he would not have married someone from overseas.

Mr Sarmini stated that he did not want his wife's circumstances to be considered in this matter only those circumstances which concerned him.  He also did not want the assurance of support matter brought into any consideration in relation to whether or not he should be paid the Disability Support Pension at the single rate.

Mr Sarmini stated that if Ms Kzibra had received Special Benefit or some other financial assistance then he would not be making an application for the single rate of Disability Support Pension.  Mr Sarmini contended that he worked and paid taxes most of his life in Australia and he should therefore be entitled to the single rate of the Disability Support Pension.  Mr Sarmini stated that he does not want to have to go out and rob people because of the dire circumstances in which he finds himself.

Turning to the Respondent's submissions, Ms Schuster submitted that the Tribunal must determine in this matter whether or not the discretion contained within section 24 of the Act should be exercised to treat Mr Sarmini as not being a member of a couple for a special reason, thus allowing him to be paid the Disability Support Pension at the single rate, which is higher than that being currently paid to him at the married rate.

Ms Schuster referred the Tribunal to the Guide to Social Security Law (“the guidelines”) which accompanies the Act in relation to matters concerning the exercise of the discretion contained within section 24 of the Act. The guidelines are contained in the T Documents at T4 from pages 17 until page 20. Ms Schuster specifically referred to the guidelines at 2.2.5.50. There are examples contained within the guidelines of situations where a special reason has been accepted to allow a member of the public to be treated as not being a member of a couple. However, Ms Schuster pointed the Tribunal to page 20 of the T Documents and I will read that. It states:

Section 24 [of the Act] would NOT apply if the couple are living together overseas.

Also, section 24 would NOT apply if:

·     an [assurance of support] is in force in respect of the person's partner (the assuree), and

·     the person who gave the assurance of support (the assurer) is willing and able to provide an adequate level of support to the assuree, and

·     it would be reasonable for the assuree to accept that support.

Ms Schuster submitted that assurances of support are legally binding documents which must be taken seriously.  The assurance of support contains a signed statutory declaration and there are penalties attached to failure to comply with the requirements of the assurance of support.  This document in the context of the matter before me was signed by Mr Selim.  It was signed, however, also in the context of Mr Sarmini stating that he had no intention of ever asking Mr Selim for money to financially support his wife, that is Ms Kzibra.

Ms Schuster pointed out the evidence that the assurance of support was signed in order to have Ms Kzibra come to Australia.  Ms Schuster submitted that a consideration of Mr Selim's assets and wages would indicate it was quite within his power to assist Ms Kzibra financially.  The fact that this had not occurred lay in Mr Sarmini's personal choice not to ask Mr Selim for assistance, even when on the evidence Mr Selim had stated he could occasionally help out financially.

Furthermore, Ms Schuster submitted that Ms Kzibra could apply for Special Benefit but has chosen not to pursue this.  This is for the reason as provided by Mr Sarmini's evidence that it would affect Mr Selim.  Thus, Ms Schuster submitted, the reason for Mr Sarmini's poor financial situation is not just his poor health and his meagre finances but because of his personal choice not to pursue avenues for possible financial help either by way of the assurance of support or by way of claiming a social security benefit such as this Special Benefit.

Ms Schuster referred the Tribunal to the decision made by another differently constituted Tribunal in the matter of Re Kaddous and Secretary, Department of Family and Community Services [1999] AATA 183; (1999) 56 ALD 583. This was a matter decided on 25 March 1999.

That case contains very similar facts in which the Applicant was on single rate Disability Support Pension and had travelled to Egypt to be married, returning then to Australia initially without his wife. The Applicant in that case had his wife later join him. There was an issue in that particular matter as to whether or not the discretion contained within section 24 of the Act should be applied.

At paragraph 26 of the decision which I have previously referred to, Re Kaddous and Secretary, Department of Family and Community Services (supra), it is noted that - and I quote:

“Whether or not the Assurer continues to meet his obligation, and whether or not Ms Mikhail now elects to seek an income security entitlement from the Department of Family and Community Services, Ms Mikhail has access to resources that can be pooled as a member of a couple.

For the reasons given the decision under review will be affirmed.”

That was the decision in that particular matter.

There are other decisions which have been made by Tribunals and in relation to Federal Court decisions, decisions where the Federal Court has exercised the discretion contained within section 24 of the Act. In this regard, Ms Schuster referred the Tribunal to the Federal Court decision of Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 and another decision of Cocks v Centrelink [2000] FCA 1248; (2000) 32 AAR 360. Those two cases Ms Schuster submitted can be distinguished on their very different facts. That is, very different facts in comparison to those facts related to Mr Sarmini's case.

In this case Ms Schuster submitted that to allow the discretion contained in section 24 of the Act to be applied would be contrary to the purpose of the intention of Parliament and also the purpose of the social security law and assurance support provisions considered as a whole. In the Respondent's Statement of Facts and Contentions (Exhibit R1), Ms Schuster also referred to the SSAT decision at paragraph 20, which is contained at T2 page 8, and that I will read:

“Although Centrelink Policy Guidelines and certain AAT [Administrative Appeals Tribunal] decisions support the exercise of the discretion under section 24 [of the Act] where a couple are in hardship because a partner is not residentially qualified for an income support payment, this is not the case where that partner is subject to an Assurance of Support.  The tribunal took into consideration the purpose of the law in relation to the assurances of support, which is to preclude the granting of income support payments to migrant within their first two years in Australia, where they are subject to an Assurance of Support.  Mr Sarmini arranged an Assurance of Support to be signed in relation to his wife, knowing full well that the assuror had no intention of providing financial support to his wife.  Mr Sarmini may lodge a claim for payment of special benefit because she is not receiving any support from her assuror, Mr Selim.  However, Mr Sarmini will not allow this to happen because Mr Selim signed the Assurance of Support as a favour to Mr Sarmini, on the grounds that Mr Sarmini would not ask him for any financial support.”

Ms Schuster acknowledged that while the amount of Disability Support Pension paid to Mr Sarmini may be insufficient to provide for himself and Ms Kzibra, this cannot be overweighed by the fact that there is an assurance of support in existence and that it would be contrary to the law which covers social security matters and the assurances of support to allow the discretion to be exercised, especially in circumstances where it was never intended that Mr Selim having signed that assurance of support was to provide any such support.  In all of the circumstances, Ms Schuster submitted that the decision under review should be affirmed. 

I now come to my findings in this matter.  The Tribunal has made a determination in this matter taking into account the oral and documentary evidence, the submissions, the legislation and the case law.  The Tribunal finds that Mr Sarmini has been truthful in his evidence provided to the Tribunal.  The Tribunal finds that Mr Sarmini and Ms Kzibra are married and living together as a couple.  The Tribunal also finds that Mr Sarmini has significant health problems and is severely financially disadvantaged.

A further finding reached by the Tribunal is that there is in existence a valid and current assurance of support in relation to Ms Kzibra taken out by Mr Selim and I refer to Exhibit R2.  This is a binding document which requires that as the assurer, Mr Selim is to provide certain things, including financial assistance, and I have earlier in this decision detailed the various severe and binding points of the statutory declaration.

The Tribunal further finds that Mr Sarmini knew of the requirements of the assurance of support but never intended to ask Mr Selim for support and has not done so.  While Mr Sarmini does not consider that this document is relevant or should be considered in my determination, it is to my view as the Tribunal, very relevant as it provides a possible means of support for Ms Kzibra. 

Ms Kzibra's financial affairs and Mr Sarmini's are inextricably linked.  Mr Sarmini is attempting to support his wife, being married to her, on the married rate of Disability Support Pension.  Furthermore, the Tribunal finds that there is also a possibility of financial assistance being available to Ms Kzibra, and hence Mr Sarmini, if Ms Kzibra claimed Special Benefit..  On the evidence available to the Tribunal this has not been done or if there was an initial claim for Special Benefit it was withdrawn because of the concern expressed on a number of occasions by Mr Sarmini that he did not and does not want a claim for Special Benefit to be made because it will impact adversely on Mr Selim.

Mr Selim did not provide evidence to the Tribunal either in oral or documentary form which would indicate that he would or indeed would not be able to support or be willing to support Ms Kzibra.  Mr Sarmini's evidence is that Mr Selim has stated that he in fact would assist financially on occasions with small amounts such as $200.00 from time to time.  Again Mr Sarmini has stated that he does not wish to approach Mr Selim for any assistance.

Considering the case law relevant to this matter, while other Tribunals and Federal Courts have exercised the discretion contained within section 24 to treat a married person as not being a member of a couple, the fact situation which I have had presented to me and which I have made findings on in this case, presents very different factual situations and I refer here to cases for example in Re Hawkins and Secretary, Department of Social Security (1996) 24 AAR 153; (1996) 44 ALD 651. Another case of Re Secretary, Department of Social Security and Porter (1997) 48 ALD 343.

It is clear to me that the legislation intended that couples should be expected to pool their resources and this results in economies of scale which is then reflected in the differing rates of payments, that is either the married rate or the single rate.

Section 24 of the Act allows for a discretion to be exercised when there are unusual, uncommon or perhaps unjust consequences of there being a person considered to be a member of a couple which could then be alleviated by the discretion contained within section 24 if there is a special reason.

In Mr Sarmini's case he is married and his wife was allowed to come to Australia on the basis of a number of conditions including the signed, valid and current assurance of support.  There has been no action taken to enforce the issue in support by Mr Sarmini or his wife because they have chosen not to do so.  This is a matter of pride for Mr Sarmini.  There is nothing to suggest that this could not be actioned.  While Mr Sarmini prefers not to seek any assistance from his friend, he has also decided not to make any application for other possible income support, for example in the form of a Special Benefit.  Again, he has not allowed his wife to do so because he does not want this to impact adversely on Mr Selim. 

These are matters of choice by Mr Sarmini and also these circumstances must be taken into account.  It is quite clear, as I have found previously, that Mr Sarmini does have significant health and financial problems, but he also has the opportunity to either test the assurance of support undertaken by Mr Selim or, if that is not possible, in that Mr Selim will not or cannot assist, there is the other possibility of seeking assistance through the income support system and specifically I refer to the Special Benefit.

That this has not been done is a matter for Mr Sarmini. It is not a matter where this Tribunal considers that it is appropriate or desirable that income support be provided to Mr Sarmini in circumstances when he has other possibilities which are valid and legal recourses to obtain financial assistance. The Tribunal must, in addition to considering the legislative requirements, consider the policy guidelines and it is clear to me that section 24 of the Act both from the legislation and the intention behind the legislation, both in terms of the Migration Regulations and in terms of the Act in combination with the policy considerations would make it undesirable and inappropriate to have the discretion contained within section 24 to be exercised.

The Tribunal does not consider that the government should provide income support in circumstances where Mr Sarmini has not exercised valid and legal means of obtaining support for his wife.  That Mr Sarmini and Ms Kzibra have entered into a private agreement or arrangement or promise in terms of that assurance of support lies with Mr Selim and Mr Sarmini and Ms Kzibra.  It is unacceptable that income support be provided to Mr Sarmini in circumstances where there are those other possibilities available to his wife for income assistance. 

Accordingly, I have decided that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review should be affirmed and what that means is that Mr Sarmini should continue to be paid Disability Support Pension at the married rate. That is my decision and that decision will be provided in writing to you, Mr Sarmini and to you, Ms Schuster. Thank you very much. I will now conclude this delivery of decision.