Snaith and Secretary, Department of Social Services (Social services second review)

Snaith and Secretary, Department of Social Services (Social services second review) [2019] AATA 2544 (15 August 2019)
Division:GENERAL DIVISION
File Number:2018/3426
Re:Paul Snaith
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:15 August 2019
Place:Brisbane

The Tribunal affirms the decision under review.
........... [SGD]...........................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Assurance of Support – Debt – family breakdown - whether write off – whether waiver – special circumstances not found – decision under review affirmed
LEGISLATION
Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Bill 2003 (Cth)
Migration Act 1958 (Cth)
Social Security Act 1991 (Cth)
Social Security (Assurances of Support) Determination 2004 (Cth)
Social Security (Assurances of Support) (DEEWR) Determination 2008 (Cth)
Social Security (Assurances of Support) (DEEWR) 2018 (Cth)
CASES
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Gunn and Department of Social Security [1999] AATA 87
Hassan and Secretary, Department of Social Services (Social services second review) [2018] AATA 4618
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Secretary, Department of Social Security and Kratochvil (1995) 37 ALD 515
Reyhanli and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2013] AATA 587
REASONS FOR DECISION
Member D Mitchell
15 August 2019
INTRODUCTION

On 4 May 2009, Mr Paul Snaith (the Applicant) lodged an application with the Respondent to provide an Assurance of Support for his mother-in-law, Ms Emma Kulevich (the Assuree).[1]
[1] Exhibit 1, T Documents, T34, pages 349-350, Centrelink letter dated 18 May 2009.
On 28 May 2009, the Respondent accepted the application[2] and the Applicant lodged a bank guarantee of $10,000.[3]
[2] Exhibit 1, T Documents, T34, pages 351-352, Centrelink letter dated 28 May 2009.
[3] Exhibit 1, T Documents, T32, page 281, Centrelink contact note dated 28 May 2009.
In 2010, the Applicant separated from his wife Ms Larissa Snaith.[4]
[4] Exhibit 1, T Documents, T27, page 162, Emails and documents provided by the Applicant.
The Respondent advised the Applicant on 16 February 2011 that the Assuree had been issued with a visa and was in Australia. Specifically the Applicant was advised: [5]
...This means that your responsibility as an Assurer has started. You are now responsible for ensuring that Emma Kulevich has sufficient direct or indirect financial support so that they do not need to receive support from us.
If you are unable or unwilling to provide sufficient support or it is unreasonable for the support to be accepted, you will be required to repay the full amount of any recoverable payments made to Emma Kulevich during the Assurance of Support period. We may recover the amount you owe from the Commonwealth Bank under the terms of any bank guarantee provided in respect of the Assurance of Support.
The Assurance of Support remains in force for 10 years from 27~‘January~‘2010 to 26~‘January~‘2020 inclusive.
[5] Exhibit 1, T Documents, T34, pages 353-354, Centrelink letter dated 16 February 2011.
The Assuree claimed special benefit on 8 February 2011.[6]
[6] Exhibit 1, T Documents, T4, pages 29-54, Claim for Special Benefit by Ms Emma Kulevich; Exhibit 5, Claim for Special Benefit form.
The Respondent advised the Applicant on 28 March 2012 that the Assuree was granted special benefit which is a recoverable payment under the Assurance of Support from 2 March 2012.[7]
[7] Exhibit 1, T Documents, T34, pages 357-358, Centrelink letter dated 28 March 2012.
On 28 November 2012, the Respondent advised the Applicant that the current amount that he would have to repay at the end of the assurance period was $8,827.52. Further, once the amount the Applicant is required to repay is greater than the bank guarantee, the bank will release the guarantee and that amount will be offset against the balance of the Applicant’s account.[8]
[8] Exhibit 1, T Documents, T7, pages 58-59, Centrelink Notice: Assurance of Support.
On 18 May 2012, the Respondent decided to ask the Applicant to repay an Assurance of Support debt of $12,365.52 for the period 2 March 2012 to 15 February 2013. The Applicant sought review of that decision, which was affirmed by an Authorised Review Officer (ARO) on 15 April 2013.[9] The Applicant did not seek further review of the decision.
[9] Exhibit 1, T Documents, T8, pages 60-62, Authorised Review Officer Decision and Notes.
Property settlement orders were made by the Federal Circuit Court on 24 April 2013 between the Applicant and Ms Snaith. The orders provided that the parties shall do all things necessary to transfer the Assurance of Support from the sole name of the Applicant to the joint names of the Applicant and Ms Snaith.[10]
[10] Exhibit 1, T Documents, T9, pages 63-68, Letter from Henry Family Lawyers enclosing Court Orders dated 24 April 2013.
On 19 December 2017, the Respondent raised an Assurance of Support debt of $61,629.16 against the Applicant for the period 2 March 2012 to 16 June 2017.[11]
[11] Exhibit 1, T Documents, T20, pages 92-95, ADEX Debt Explanation and Calculations; T21, pages 97-99, Centrelink Notice: Assurance of Support Statement.
The Applicant sought review of the decision. On 13 February 2018, an ARO decided to affirm the decision. The ARO made the following key findings:[12]
·You entered into an Assurance of Support agreement for Emma Kulevich.
·The department sent a letter to you on 28 May 2009 advising of the Assurance if Support agreement.
·The department sent a letter to you on 16 February 2011 advising that the Assurance of Support period started on 27 January 2010 and ceased on 26 January 2020.
·Numerous other letters were sent to you throughout the debt period that advised of the accruing debt.
·Special Benefit was granted to Emma Kulevich from 2 March 2012.
·During the period 2 March 2012 to 16 June 2017, Emma Kulevich has received Special Benefit totalling $61,629.16.
·On 19 December 2017 the department decided you had a debt of $61,629.16 to repay and sent you a debt notice.
[12] Exhibit 1, T Documents, T23, pages 103-109, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of the ARO decision by the Social Services and Child Support Division (SSCSD) of this Tribunal. The SSCSD affirmed the decision of the ARO on 16 May 2018.[13]
[13] Exhibit 1, T Documents, T2, pages 5-11, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 19 June 2018.[14]
[14] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
On 23 May 2019, a Hearing was held for this application. At the Hearing, the Applicant appeared in person, was self-represented and gave evidence under oath.
The relevant law in relation to the Applicant’s Assurance of Support and recovery of debts to the Commonwealth is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Assurances of Support) Determination 2004 (Cth);[15] the Social Security (Assurances of Support) (DEEWR) Determination 2008 (Cth) and the Social Security (Assurances of Support) (DEEWR) 2018 (Cth).[16]
[15] As in force on 27 January 2010.
[16] The Determinations are made pursuant to section 1061ZZGH of the Act.
ISSUES
The issues for the Tribunal to consider are:
1.Whether, the Applicant has an Assurance of Support debt; and
2.If so, whether the debt is recoverable in part or in full.
CONSIDERATION
Does the Applicant have an Assurance of Support debt?
Chapter 2C of the Act establishes the Assurance for Support scheme. Relevantly section 1061ZZGA of the Act defines an Assurance of Support as follows:
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.
Pursuant to section 21 of the Social Security (Assurances of Support) Determination 2004 (Cth) as in place on 27 January 2010,[17] an Assurance of Support for a contributory parent migrant visa remained in force for a period of 10 years.
[17] The date the Applicant’s Assurance of Support commenced.
Section 1061ZZGEA of the Act provides that a person who has given an Assurance of Support that has been accepted by the Respondent cannot withdraw that assurance once the person in respect of whom the assurance was given becomes the holder under the Migration Act 1958(Cth) of a visa granted in connection with the assurance.
Section 1061ZZGG of the Act sets out the Assurer’s liability to pay for social security payments as follows:
(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.
(2)The assurer is liable to pay the Commonwealth the amount of the social security payment.
(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.
Special benefit is a social security payment for which Assurers are liable under sections 1061ZZGA and 1061ZZGG of the Act.[18]
[18] Section 5 of the Social Security (Assurances of Support) (DEEWR) Determination 2008 (Cth); section 6 of the Social Security (Assurances of Support) (DEEWR) Determination 2018 (Cth).
Section 1227 of the Act relevantly provides that an Assurance of Support debt includes a liability of a person to the Commonwealth because of the operation of section 1061ZZGG. It is specified that if a person is liable to pay an assurance of support debt, the debt is a debt due to the Commonwealth.
The Respondent contends that an Assurance of Support is in force between the Applicant (as the Assurer) and the Assuree, on the basis that the Assuree was identified in the Assurance of Support undertaking accepted by the Respondent and was issued with a subclass 143 visa on 23 November 2009 which requires an Assurance of Support.[19]
[19] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 3, paragraph 20.
The Respondent contends that the Applicant had given an Assurance of Support for the Assuree and was liable to pay the Commonwealth amounts of special benefit received by the Assuree during the Assurance of Support period. Further, that pursuant to section 1061ZZGG of the Act, the Applicant has an Assurance of Support debt to the Commonwealth of $61,629.16 for the period 2 March 2012 to 16 June 2017.[20]
[20] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 4, paragraphs 26-28.
The Applicant does not dispute that he entered into an Assurance of Support in relation to the Assuree, his then mother-in-law.
In the evidence before the Tribunal, the Applicant has provided a number of written statements which are consistent with the Centrelink notes and the evidence that he provided at Hearing. The Applicant told the Tribunal that at the time of signing the Assurance of Support documents he understood that the Assuree would be able to support herself after selling her home in Russia and that she would be living with him and her daughter.
The Applicant disputes that the Assuree was eligible for special benefit payments and provided details of his understanding of what the Assuree’s financial situation should have been.[21] The Applicant contended that in accordance with Federal Circuit Court Orders dated 24 April 2013 the Assurance of Support should have been transferred from resting solely with him to being jointly held with Ms Snaith and that this had not been actioned by the Respondent.
[21] Exhibit 4, Documents provided by the Applicant.
The Respondent contended that even if Ms Snaith had have been added as an Assurer, both Ms Snaith and the Applicant would have been jointly liable for the whole debt.
Based on the evidence before the Tribunal, I am satisfied that the Applicant gave an Assurance of Support that was accepted by the Respondent and commenced on 27 January 2010 and that from 2 March 2012 the Assuree received a social security payment in the form of special benefits. Therefore, pursuant to section 1061ZZGG of the Act, I find that the Applicant is liable to pay the Commonwealth the amount of the social security payment paid to the Assuree during the Assurance of Support period. Consequently, in accordance with section 1227 of the Act, the Applicant has an Assurance of Support Debt.
Is the Assurance of Support debt repayable in part or in full?
As I have found that the Assurance of Support debt exists, I must consider whether the debt must be repaid.
The Explanatory Memorandum to the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Bill 2003 (Cth) provides the objective of the Assurance of Support scheme as:[22]
The Assurance of Support Scheme allows migrants who are at a higher risk of needing to claim social security payments to come to Australia, while protecting the Commonwealth from financial risk.
[22] Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Bill 2003 (Cth), page 11.
The general proposition provided by the Act is that the Australian community should not be required to provide financial support to certain persons (the Assuree) entering Australia for the period of the Assurance of Support. The person providing the Assurance of Support (the Assurer) is responsible for providing that person or persons with financial support. As such, the starting principle must be that any social security payment made to the Assuree is recoverable from the Assurer.[23]
[23] The decision of Deputy President S A Forgie in Gunn and Department of Social Security [1999] AATA 87 has been considered.
However, there are circumstances where the recovery of a debt is either put on hold for a period of time (written off) or is no longer pursued (waived). Relevant to the Applicant’s Assurance of Support debt, the Respondent may write off or waive his Assurance of Support debt if the requirements set out in sections 1236, 1237A or 1237AAD of the Act are met.
Should the Debt be written off pursuant to section 1236 of the Act?
Section 1236(1) of the Act provides that, subject to section 1236(1A), the Respondent may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
Section 1236(1A) of the Act allows the Respondent to decide to write off a debt 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.
The Respondent contends that section 1236 of the Act has no application in the present matter as the debt is not irrecoverable at law; the Applicant’s whereabouts are known and he has some capacity to repay the debt as evidenced by his Statement of Financial Circumstances; and it is cost effective for the Commonwealth to take action to recover the debt.[24]
[24] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 5, paragraph 32.
The Applicant provided a Statement of Financial Circumstances dated 15 March 2018 that related to his household’s position at that date. The statement showed that both the Applicant and his partner were working, he holds a property which is usually rented (although at that time was vacant), they have some cash on hand and overall income meets the majority of their expenses.[25]
[25] Exhibit 1, T Documents, T25, pages 112-117, Statement of Financial Circumstances; Exhibit 3, undated Personal Money Plan is overall consistent with the information provided in the Statement of Financial Circumstances.
At the Hearing, the Applicant told the Tribunal that he probably missed something in completing the Statement of Financial Circumstances and that he:
·has a significant amount of debt over his property;
·was working 6 hours a day 4 days a week and earning $1,000 per fortnight;
·was currently paying off his Centrelink debt at $40 per fortnight; and
·needs an operation on his foot that will affect his work capacity in the future.
Based on the evidence before the Tribunal, I am satisfied that the debt is recoverable at law, the Applicant has the capacity to repay the debt, his whereabouts are known and that there is no evidence to suggest it is not cost effective for the Commonwealth to take action to recover the debt. Consequently, I find that the Applicant’s Assurance of Support debt cannot be written off pursuant to section 1236 of the Act.
Should the Debt be waived due to sole administrative error pursuant to section 1237A of the Act?
Section 1237A(1) of the Act provides that the Respondent 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.
The special benefit payment was paid to the Assuree not to the Applicant. Therefore, as the Applicant did not receive the payment that gave rise to the Assurance of Support debt, I find that section 1237A of the Act cannot apply.[26] Consequently, I find that the Applicant’s Assurance of Support debt cannot be waived pursuant to section 1237A of the Act.
[26] As per Re Secretary, Department of Social Security and Kratochvil (1995) 37 ALD 515; Gunn and Department of Social Security [1999] AATA 87.
Should the Debt be waived due to special circumstances pursuant to section 1237AAD of the Act?
Section 1237AAD of the Act provides that the Respondent may waive the right to recover all or part of a debt if they are 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, the Administration 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.
Section 1237AAE of the Act provides extra rules for waiver of Assurance of Support debts. Relevantly, in relation to waiving a debt under section 1237AAD the Respondent may waive the right to recover all or part of the debt only if the Respondent 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 in connection with the assurance. Further, the Respondent can only waive the right to recover an amount of the debt that does not exceed the difference between the debt and the amount that can be obtained by enforcing the security provided under section 1061ZZGD(3) of the Act.

The Act does not provide a definition of special circumstances. However, the general proposition, established by relevant Federal Court decisions, make it clear that ‘special’ means something different from the usual or ordinary.[27]
[27] Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at 545 per Kiefel J; Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639 at [51]; Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at [18]; Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084 at [37] per Barker J.
In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 the Tribunal held:
12. 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. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. 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.
In Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, the Tribunal stated:
80. …"special circumstances" are not merely directed to the person's own circumstances. Rather, they are directed to those that are "special circumstances...that make it desirable to waive". That necessarily requires a consideration of the person's individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it...He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement...The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act."
In Hassan and Secretary, Department of Social Services (Social services second review) [2018] AATA 4618 in considering whether to find special circumstances in relation to an Assurance of Support matter, the Tribunal stated:
62. …It would undermine the public policy purpose of the AoS if the debt that arose from that assurance was subsequently waived simply because the applicant complained of the very obligations that he had agreed to assume and which the Government had relied on in granting his mother and sister their visas. In order for the special circumstance provision to be enlivened there needs to be a circumstance that stands out from the ordinary.
The Applicant contends that his circumstances are special. At the Hearing, the Applicant told the Tribunal:
·The breakdown of his marriage affected how he could provide support to the Assuree. There were allegations of family violence which were not proven.
·The Assuree had money which she had given her daughter, Ms Snaith, on loan and therefore she should not have received special benefit.
·It was promised that the Assuree would support herself.
·He has care of his son 60% of the time. His son is doing well and wants to stay with him. He tries to get along with Ms Snaith, because of their son.
·At the time, he signed the Assurance of Support documents, he thought everything was good in his relationship. He had just got back from working in Mexico. He thought that the Assuree would not need support as she had money. He thought they would look after her at home.
·He had had no contact with the Respondent about his Assurance of Support debts since 2013 as he thought it was closed down. He said that he had contacted Centrelink to make an appointment, but was not able to.
·The Federal Circuit Court judgment showed that the provision of an Assurance of Support should be borne by both the Applicant and Ms Snaith and required Ms Snaith to take the necessary actions to join herself to the Assurance of Support. He was advised by his solicitors in 2013 that Ms Snaith had returned the required form to Centrelink, but Centrelink had not processed the form. He did not realise that Centrelink had not processed the form when this review process started.
·He had not gone back to the Federal Circuit Court to have the orders enforced, because of the cost associated with proceedings. He is also worried about the effect it will have on his son.
·He had concerns for his safety.
The Applicant’s financial circumstances are set out at paragraphs 37 to 38 above.
On cross-examination, the Applicant told the Tribunal:
·He had not sought legal advice about seeking to enforce the Federal Circuit Court orders. He understands the process is that he would need to make an application which would cost $400 and it would be a 2 year wait. If he is unsuccessful in this matter he would seek enforcement of the Federal Circuit Court orders.
·He does not think he should be liable for the Assurance of Support debt at all. He thinks the Assuree’s daughter should be.
·He does not know where the Assuree’s money has gone.
·He is aware that Ms Snaith and the Assuree had a falling out in 2012. The Assuree moved out and started to claim special benefits.
·He does not know the qualification requirements for special benefit, but the Assuree has a loan to her daughter which could be paid back.
·He believed the form to add Ms Snaith as a joint Assurer was lodged. He did not think he would need to follow up with Centrelink about it. He went to the Tweed Heads office and no one knew about Assurance of Support.
The Respondent told the Tribunal that Ms Snaith’s form to become a joined Assurer was only bought to their attention as part of this review process despite the form being signed on 11 July 2013. It is unclear whether the form was ever lodged with Centrelink. Given the amount of time that has passed since the signing of the form and the absence of the required supporting evidence, Centrelink attempted to contact Ms Snaith.
The Respondent contends that the Assurance of Support was signed by the Applicant and he accepted the associated support responsibilities and although unfortunate things have happened his circumstances are not out of the ordinary in the manner that constitutes special circumstances. Relevantly the Respondent’s reasons for these contentions is set out in the Statement of Facts and Contentions as follows:[28]
[28] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-12, paragraphs 43-52
43. The Secretary accepts that it may be open to the Tribunal to waive part of the debt under section 1237AAD of the Act. This is because the Applicant's circumstances surrounding his separation from Mrs Snaith could, on one view, be said to be somewhat out of the ordinary and unusual. The Applicant signed the AoS on 4 May 2009 (T34, 349) and separated from his wife in September 2010. The family law judgment dated 24 April 2013 shows that the Judge found the bringing of the assure to Australia was a joint decision and that the Applicant and Mrs Snaith must equally contribute to any liability arising from the AoS (T27, p141).
44. In the course of these proceedings, it was also discovered that Mrs Snaith had filed an application on 11 July 2013 to be joined as an assurer however the Department did not process the application (Attachment A). The Department has formed the view that it cannot now process the application as Mrs Snaith has advised that she now does not consent to being a joint assurer.
45. However, the Secretary contends that the debt should not be waived under section 1237AAD of the Act. The main reason being that the Tribunal has consistently found that a breakdown in family relationships is not a special circumstance. In Reyhanli and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2013] AATA 587, the Tribunal stated:
Mr Reyhanli also argued that he should not have to repay the AoS debt because Ms Cimen left the relationship a short time after her arrival in Australia. Unfortunately breakdowns in relationships do occur, and are not considered unusual or uncommon events in the special circumstances context. Mr Reyhanli entered into the AoS and by signing up for it, assumed the responsibilities imposed. I am satisfied from his evidence that he understood the implications when he signed the document ... The unfortunate circumstance of an early breakdown in a relationship does not fall within the meaning of special circumstance within the legislation.
46. The Secretary contends that the debt should also not be waived for the following reasons:
■ The Applicant's circumstances as a whole are not sufficiently unusual,
uncommon or exceptional so as to make his case markedly different from the ordinary run of cases and otherwise 'special' so as to waive the debt.
■ The Applicant has a right to commence legal proceedings against Mrs Snaith due to her failure to comply with the orders made on 24 April 2013. If successful, the court could compel Mrs Snaith to lodge the AoS form (with required documents) or could make an enforcement order requiring payment of her proportion of the debt.
…
47. Mr Snaith also claims that the assuree should not qualify for special benefit as she had significant funds when she first moved to Australia. Specifically that she sold her house in Russia for $120.000 AUD and brought $60,000 AUD to Australia. The funds were transferred to Mrs Snaith to go towards an investment unit in Australia (Attachment B).
48. The Applicant has lodged with the Tribunal evidence from his family law dispute with Mrs Snaith. This includes a statutory declaration signed by the assuree on 27 May 2011 stating that she had transferred $66,000 to her daughter, Mrs Snaith (Attachment C). The Applicant claims that he knew the assuree would be receiving this money from the sale proceeds of her house and she would be able to support herself using these funds (Attachment D).
49. The claim for special benefit dated 8 February 2011, states that the assuree lives with her daughter and grandson (T4, p41). However on 14 June 2012 she told the Department that she was in conflict with her daughter and was in crisis accommodation (T33, 334). The assuree has consistently stated in her AoS review forms that she had not been receiving support from her assurer as she has a conflict with her daughter, Mrs Snaith (T28, p191-247). The judgment dated 24 April 2013 also states that the assuree had a falling out with her daughter (T25, p141). However, there is an affidavit of 15 December 2014 where she states that she has lived with her daughter since arriving in Australia (T27, p123-128).
50. The Secretary contends that the decision to grant special benefit to the assuree is not before this Tribunal. Under s1061ZZGG of the Act, if a social security payment is received by an assuree, the assurer is liable to pay the amount of the social security payment. The fact that the social security payment was received by the assuree in this case is not in dispute. Whether or not she should have received the payment is not a relevant consideration under s1061ZZGG. The Secretary however accepts that the factors surrounding the granting of special benefit may be considered by this Tribunal when considering special circumstances.
51. The Secretary accepts that there is evidence that shows that the assuree may have been living with her daughter for the time that she received special benefit. There is also evidence that the assuree may have given funds to her daughter when she arrived in Australia. However neither of these factors would have necessarily prevented the assuree from being eligible for special benefit. The asset value limit for special benefit is $465,500 (s733 of the Act) and the person must not have available funds of more than $5000.² Whether the assuree has gifted the funds to her daughter when she first moved to Australia or is living with her daughter, this is unlikely to affect the assuree's eligibility for special benefit...
52. The Secretary contends that the debt should not be waived under s1237AAD of the Act. This is because, the Applicant has the right to commence proceedings to enforce payment of Mrs Snaith's share of the AoS debt, family breakdown is not a special circumstance and the Applicant was aware of his responsibilities under the AoS.
I accept that the Applicant’s Assurance of Support debt did not result from the Applicant knowingly making a false statement or representation or knowingly failing to comply with reporting requirements.
The Applicant presented his evidence at the Hearing in a clear and open manner. I acknowledge the personal hardships that he has endured due to his relationship breakdown. It was clear that the Applicant entered into the Assurance of Support with good intentions and with the belief that the Assuree would live in his family home and be able to largely support herself. At that stage he did not envisage ever having an Assurance of Support debt. Unfortunately, family situations break down and often have wide ranging implications to the circumstances of those involved. While orders of the Federal Circuit Court have not been complied with in relation to the Assurance of Support, the enforcement of these orders does not fall on the Respondent.
Based on the evidence before the Tribunal, I agree with the contentions made by the Respondent that have been set out above and do not consider that the Applicant’s circumstances are sufficiently special or unusual to warrant the exercise of the discretion in section 1237AAD of the Act to waive the debt. Consequently, I find that the Applicant’s Assurance of Support debt cannot be waived pursuant to section 1237AAD of the Act.
CONCLUSION
I find that the:
(a)Applicant has an Assurance of Support debt of $61,629.16 for the period 2 March 2012 to 16 June 2017;
(b)Applicant’s Assurance of Support debt is a debt owed to the Commonwealth;
(c)Requirements of sections 1236, 1237A or 1237AAD of the Act are not met; and
(d)Applicant’s Assurance of Support debt is recoverable in full.
Accordingly, the decision under review is affirmed.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.....[SGD]....................................................
Associate
Dated: 15 August 2019

Date of Hearing: 23 May 2019

Applicant: In person

Advocate for the Respondent: Ms Donna Smith

Solicitors for the Respondent: Department of Human Services

[2019] AATA 2544

15 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Remedies

Standing

Date of Hearing:	23 May 2019
Applicant:	In person
Advocate for the Respondent:	Ms Donna Smith
Solicitors for the Respondent:	Department of Human Services