Stefanie Jones and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 708
•15 October 2012
[2012] AATA 708
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0878
Re
Stefanie Jones
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Deputy President D G Jarvis
Date 15 October 2012 Place Adelaide The decision under review is affirmed.
...... [Signed ......
Deputy President D G Jarvis
CATCHWORDS
SOCIAL SECURITY - Assurance of Support - cannot be withdrawn once visa issued - visa ceasing to be of effect upon assurees being granted citizenship - distinction between cancellation and cessation of visa - relationship between security bond and assurance of support - Guide to Social Security Law not followed - held that applicant should not be released from assurance of support or security bond before end of ten year period - decision under review affirmed.
LEGISLATION
Acts Interpretation Act 1901 (Cth), ss 15AA and 15AB
Migration Act 1958 (Cth), ss 55 and 82
Social Security Act 1991 (Cth), ss 1061ZZGA, 1061ZZGGEA, 1061ZZGF, 1061ZZGG and 1061ZZGHSocial Security (Assurances of Support) (FaHCSIA) Determination 2007, ss 17 and 18
CASES
Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154
Assaf and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 976
Berenguel and Minister for Immigration and Citizenship (2010) 264 ALR 417; (2010) 114 ALD 1
Christanty and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 497
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Green v Daniels (1977) 13 ALR 1
SECONDARY MATERIALS
Explanatory Statement to the Social Security (Assurances of Support) (FaHCSIA) Determination 2007
Guide to Social Security Law
REASONS FOR DECISION
Deputy President D G Jarvis
15 October 2012
The applicant, Stefanie Jones, provided an assurance of support (AoS) through her business, The Jones Consultancy, on 6 February 2008 to enable her parents, David and Jane Brooking, to migrate to Australia. Her business also provided a security deposit in the sum of $20,000 in connection with the AoS on 11 February 2008. Mr and Mrs Brooking arrived in Australia on a Contributory Parent (Migrant) Visa (Subclass 143) on 31 August 2008. They became Australian citizens in 2009.
The duration of the AoS is for a period of ten years, from 31 August 2008 (when Mr and Mrs Brooking first arrived in Australia) until 30 August 2018.
In October 2009 Mr Brooking and later The Jones Consultancy contacted Centrelink to request that the security deposit be released. In a letter dated 28 October 2009 to The Jones Consultancy, Centrelink stated that the bond could not be realised until the AoS expired on 30 August 2018.
On 13 November 2009 Mr Brooking contacted Centrelink to request that the deposit be released as he had been granted citizenship. On this date Centrelink decided not to cancel the AoS and not to release the security bond. This decision was reconsidered and affirmed by the original decision maker on 2 February 2010.
An authorised review officer (ARO) affirmed this decision on 22 February 2010. In September 2011 Mr Brooking applied to the Social Security Appeals Tribunal (SSAT) for review of the ARO’s decision. Ms Jones was subsequently invited to lodge an application in her own right and later did so, nominating her father as representative. On 12 December 2011 the SSAT affirmed the ARO decision. The SSAT also determined that Mr Brooking was not a person whose interests were affected by the decision, and that he was not entitled to initiate the application for review.
Mr Brooking applied to this tribunal for review of the SSAT decision on 3 February 2012 in Application no. 2012/0423. On 6 March 2012 Ms Jones applied to this tribunal for review of the SSAT decision, and authorised her father Mr Brooking to act as her agent to proceed with the application. This was based on the SSAT’s finding that Mr Brooking had no standing and that it would accordingly be appropriate for Ms Jones to initiate the review. Mr Brooking subsequently withdrew his application in Application no. 2012/0423.
In July 2012, Mr Brooking and Mr C Visser, the representative of the Secretary, agreed to this matter being heard on the papers. I have before me the T documents compiled by the respondent, the respondent’s statement of facts, issues and contentions, an Explanatory Statement filed by the respondent, and also a number of submissions from Mr Brooking.
BACKGROUND
Ms Jones signed an AoS on behalf of The Jones Consultancy on 6 February 2008 for Mr and Mrs Brooking. The AoS was provided in the context of Mr and Mrs Brooking wishing to migrate to Australia. On 11 February 2008 The Jones Consultancy provided a Bank Guarantee of $20,000 in relation to that AoS. The Jones Consultancy was advised, when they entered into the AoS, that the duration of the AoS was for a period of ten years, that the AoS could not be withdrawn, and that the Bank Guarantee could not be cancelled and the deposit not released until the AoS period had ended for all people covered by the AoS.[1]
[1] See for example, the statements acknowledged by Ms Jones on the Application for an AoS form, which she signed on 6 February 2008: T6, page 109.
Mr and Mrs Brooking were granted a Contributory Parent (Migrant) Visa (Subclass 143) whilst they were offshore on 25 August 2008. An AoS is a mandatory requirement of that visa which comes into force on the arrival of the visa holder. They arrived in Australia on 31 August 2008, and therefore the AoS came into force on 31 August 2008. The Subclass 143 visa carries an AoS period of ten years. This means that The Jones Consultancy is therefore responsible for repayment of any social security payments Mr or Mrs Brooking receive until 30 August 2018.
Mr Brooking contends that it is impossible for him or his wife to claim any one of the nine recoverable social security benefits due to their age, in seven out of nine cases, and their financial position, in two out of nine cases.[2] He states that they are both in receipt of UK State pensions. In a written submission to the tribunal he provided details of the pensions they receive and of their liquid assets in Australia and the UK, and explained why they would be ineligible for each of the relevant social security payments even if the income and assets test permitted payment (which he claimed it did not).
[2] Recoverable social security payments are referred to in s 5 of the Determination, to which I refer below: see T3, page 34.
Mr Brooking contends that it is futile for the government to hold this money for a ten year period when no social security payments will need to be made to him or his wife, and that this amounts to “special circumstances” to warrant the release of the security. Mr Brooking also states that he only requests a release of the bond, and not necessarily for the AoS to be cancelled, and contends that a release of the bond does not necessarily entail cancellation of the AoS.
The Secretary contends that the AoS agreement is a serious legal undertaking voluntarily entered into by Ms Jones and that she is therefore bound by its obligations. The Secretary accepts that the AoS and the security bond are two separate things, as found by the SSAT, but states that the security only exists in connection with the AoS, and there is no legislative basis to release the bond to Ms Jones whilst at the same time have the AoS remain in place. The Secretary contends that no valid reason has been outlined, such as financial hardship or illness, for the bond to be released, and that the correct decision is for the AoS and security bond to remain in place until the expiry of the AoS.
ISSUE BEFORE THE TRIBUNAL
The issue before the tribunal is whether the security bond lodged by The Jones Consultancy for Mr and Mrs Brooking should be released.
LEGISLATION
The legislation governing AoS is found in Chapter 2C of the Social Security Act 1991 (Cth) (the Act). Section 1061ZZGA defines “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.
Under s 1061ZZGC(1), a person gives an AoS by delivering the assurance in writing in accordance with a form approved by the Secretary to the person and place specified, or by giving the AoS in a manner approved by the Secretary for the purpose. Under s 1061ZZGC(2), a form approved for the purposes of s 1061ZZGC(1)(a) may include other undertakings as well as the AoS.
Section 1061ZZGD provides in effect that if an AoS is given, the Secretary must accept or reject it, but may only accept it if (relevantly) he or she is satisfied that the requirements that are specified in a determination under s 1061ZZGH and relate to the person who gave the AoS are met. Under s 1061ZZGD(3), at least one person who gave the AoS must have given the Secretary a single security for the liability that may be incurred under s 1061ZZGG in connection with the AoS and a social security payment received by anyone identified in the AoS, by everyone who gave the AoS. The security must be in a form approved by the Secretary, and bear the value specified in the determination under s 1061ZZGH.
Section 1061ZZGEA of the Act provides that an AoS cannot be withdrawn once a person has been granted a visa. It states as follows:
1061ZZGEA Assurance cannot be withdrawn once visa issued
A person who has given an assurance of support that has been accepted under this Chapter cannot withdraw that assurance once the person in respect of whom the assurance was given becomes the holder under the Migration Act 1958 of a visa granted in connection with the assurance.
Section 1061ZZGF provides for when an AoS is in force, and states that it comes into effect when the person is granted a visa or enters Australia (whichever is the later). Section 1061ZZGF(1)(b) then provides relevantly that the AoS remains in force until the earliest of the following times:
(i) the end of the period specified for the purposes of this subparagraph in a determination under section 1061ZZGH;
(ii) ...
(iii) if a circumstance specified for the purposes of this subparagraph in a determination under section 1061ZZGH applies in relation to the assurance — the time determined by the Secretary in relation to that circumstance.
Importantly, s 1061ZZGF(4) provides that an AoS remains in force “in spite of any change in circumstances whatsoever”, except as provided by s 1061ZZGF(1)(b).
Section 1061ZZGG of the Act provides that the assurer is liable to pay for any social security payments made to the assuree(s).
The relevant determination made by the Minister under s 1061ZZGH is the Social Security (Assurance of Support) (FaHCSIA) Determination 2007 (the Determination).[3] Part 3 of the Determination specifies the requirements that must be met for individuals or bodies to give an AoS, and Part 4 sets out the requirements for the Secretary to accept an AoS. These provisions include an income requirement. Part 5 includes a requirement for the value of securities to be provided in support of an AoS. Section 17 in Part 6 relevantly provides that the period for which an AoS remains in force for a Contributory Parent (Migrant) visa is ten years. Section 18 sets out the circumstances under which an AoS may cease to be in force, as follows:
[3] T3, page 29.
Circumstances in which assurances of support cease to be in
force
For subparagraph 1061ZZGF (1) (b) (iii) of the Act, the following
circumstances are specified:
(a) after arrival in Australia, a person identified in an assurance of support
is granted refugee status;
(b) the visa of a person identified in an assurance of support is cancelled.
(c) a person is the only person identified in an assurance of support and the
person dies;
(d) the following special circumstances that, in the opinion of the
Secretary, justify cancellation of an assurance of support:
(i) an accident, disability, illness or other circumstance that has
critically affected the assurer’s ability to provide adequate
support;
(ii) the incapacity of a person identified in an assurance of support to
travel to Australia before the expiration of a visa.
Note Financial hardship on the part of an assurer will not, of itself, be considered a special
circumstance.
Section 1227 of the Act provides that if a person is liable to pay an AoS debt, the debt is a debt due to the Commonwealth.
CONSIDERATION
Mr Visser, for the Secretary, relies on the Explanatory Statement to the Determination, which sets out relevant background information about the AoS scheme. The following points are informative:
·An AoS is a form of legal undertaking given by the assurer to repay to the Commonwealth the value of specified social security payments made to the migrant during a specified period.
·An AoS is given as part of the visa application process.
·The visa applied for cannot be granted if an AoS that has been requested in connection with the visa is not provided and found to be acceptable.
·The AoS program allows migrants to come to Australia who do not meet the conditions for independent admission, while protecting the Commonwealth from the financial risks associated with providing social security payments.
·The Department of Immigration and Citizenship (DIAC) decides who must obtain an AoS by determining which visa needs an AoS as a condition of its grant. Centrelink, on behalf of the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) and the Department of Education, Employment and Workplace Relations (DEEWR), administers the program. Centrelink decides whether to accept or reject the assurance and ensures that any recoverable payment made to the migrant during the period of the assurance is recovered from the assurer.
·DIAC continues to determine which new migrants are subject to an AoS. However, once DIAC has made this decision, Centrelink is responsible for assessing a person’s application for an AoS under the provisions of the social security law and administering the program on behalf of FaHCSIA and DEEWR. Centrelink continues to be responsible for the recovery of AoS debts.
·The social security legislative framework for AoS includes determinations that the Minister is required to make under s 1061ZZGH of the Act. Such a determination is a legislative instrument. The matters the subject of such a determination include the values of securities to be given and the periods for which assurances of support remain in force.
Can the security be released independently of the AoS
As mentioned above, Mr Brooking contends that the AoS is separate from the security and that a request for a release of the security does not necessarily mean that the AoS need be cancelled. Mr Visser contends that the security only exists in connection with the AoS and there is no legislative basis to release the security but retain the AoS.
Mr Brooking sought to support his contention by reference to Chapter 9.4.4.20 of the Guide to Social Security Law (the Guide).[4] This sets out how a security made in connection with an AoS can be released. Mr Brooking drew my attention to the following:
[4] T3, page 55.
Release of security in 'special circumstances'
A full or partial release of security may be considered in 'special circumstances' without cancellation of the AoS where the delegate may decide that there is a 'special reason' to release the security. This is discretionary and should only apply in limited situations. The following special circumstances may justify the release of a security:
·A severe illness or disability afflicting the assurer that has critically affected the assurer's ability to provide adequate support to the assuree and where the assurer is in need of financial assistance. Any such illness or disability needs to be supported by medical evidence and a Centrelink social worker. In addition, evidence of depletion of funds will be required to be produced.
·The assuree is entitled to and is receiving a non-recoverable income support payment or pension. (emphasis added)
Example: X had been residing in Australia for a period of 12 years from 1968 to 1980 on a UK passport. In 2010 X is sponsored by her son and returns to Australia on a contributory parent visa which is subject to an AoS and a security. The 12 year period of residence in Australia from 1968 to 1980 can be counted for the purposes of meeting the 10 year residence requirement for Age even though she returned to Australia as a new migrant in 2010. X applies and is paid Age. The security can be released in this case but the AoS is to be retained.
Financial hardship alone on the part of the assurer will not be considered a special circumstance to justify a partial release of security.
AoS validity
When the security is released due to special circumstances the relevant AoS cannot be cancelled unless the circumstances fall within the provisions for cancellation of an AoS.
The Guide is published by the Secretary to provide assistance to those who administer the Act. While the Tribunal is not required to adhere to a policy guide, it should do so unless there is a cogent reason to do otherwise.[5] The above extract from the Guide suggests that there is an ability for the security to be released but for the AoS to remain in force. However, Chapter 2C of the Act and of the Determination do not provide for any such ability, and nor is that contemplated by the undertakings which form part of the AoS. To the contrary, s 1061ZZGF(1)(b), read in conjunction with s 18 of the Determination, provide for the only circumstances where an AoS (as opposed to a security) may cease to be in force, and if those circumstances apply the AoS be cancelled and the associated security refunded. For the above reasons I consider that the Guide does not reflect the correct legal effect of the relevant sections of the Act, and it would be an error of law to follow it.[6] I therefore do not accept that a security bond and associated AoS exist independently of one another, and in my opinion a security may not be released whilst an AoS remain in force.
[5] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
[6] Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640; Green v Daniels (1977) 13 ALR 1.
In any event, the relevant extract only applies where a security is released in the “special circumstances” specified. Even if I am wrong in my conclusion that the Act and the Determination do not permit the release of the security for an AoS, the special circumstances specified in the Guide do not apply to the circumstances of the present case.
Are there circumstances to enable the AoS to cease to exist
Mr Brooking did not necessarily request that the AoS be cancelled. However, given my finding that the security cannot be released independently of the AoS, I will address whether there are circumstances to warrant that the AoS cease to be in force.
There is no dispute that the length of the AoS in respect of a Contributory Parent (Migrant) visa is ten years. Only two of the four criteria under s 18 of the Determination that may warrant cancellation of the AoS are potentially relevant. They are:
·the visa of a person identified in an assurance of support is cancelled.[7]
·the following special circumstances that, in the opinion of the Secretary, justify cancellation of an assurance of support:
(i) an accident, disability, illness or other circumstance that has
critically affected the assurer’s ability to provide adequate
support;
(ii) the incapacity of a person identified in an assurance of support to
travel to Australia before the expiration of a visa.[8]
[7] Section 18(b) of the Determination.
[8] Section 18(d) of the Determination.
Were Mr and Mrs Brooking’s visas cancelled
Mr Brooking stated that upon being granted citizenship, he was informed that his visa had ceased. He therefore requested release of the security on the grounds that the bond was a requirement of that visa and that visa had since ceased. Centrelink rejected this argument on the basis that whilst the visa had ceased it had not been cancelled. Mr Brooking disputes this differentiation.
Section 82 of the Migration Act 1958 (Cth) (the Migration Act) sets out when a visa ceases to be in effect. Relevantly, s 82(1) provides that a visa that is cancelled ceases to be in effect on cancellation, and s 82(2) provides that a substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect. In Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[9], SM Isenberg decided that there is a clear distinction under the Migration Act between a visa which is cancelled and a visa which has ceased. She stated that, pursuant to s 82(1), the “cancellation” provisions are “linked to very specific circumstances”.[10] There is a particular procedure leading to the cancellation of a visa with obligatory steps set out in ss 119, 127 and 136 of the Migration Act.[11] There is no evidence that any such steps were taken in this case.
[9] [2010] AATA 154.
[10] Aboumelaya [2010] AATA 154 at [20].
[11] See Assaf and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 976.
The Explanatory Statement to the Determination describes the relevant circumstance in which an AoS will cease to be in force as follows: “if a person identified in an assurance of support has his or her visa cancelled and the person is removed from Australia” (emphasis added).[12] This supports the intention of the Determination to distinguish between cessation and cancellation of a visa, since cancellation of a non-resident’s visa means that subject to the non-resident obtaining some other visa, or particular statutory exceptions, the non-resident is no longer entitled to remain in Australia, and may be removed from Australia.
[12] Explanatory Statement, page 15.
Further, it is apparent from the papers before me that Centrelink contacted DIAC for advice on this issue, and DIAC advised that there is a difference between cessation and cancellation of a visa, and that a person’s visa ceases, but is not cancelled, when they become a citizen.[13] This intention is further supported by the definition of “assurance of support” in s 1061ZZGA(a)(ii), where it refers to the assuree becoming the holder of a visa granted in connection with the undertaking “whether or not the person continues to hold the visa throughout the period”. DIAC also referred to the Explanatory Memorandum to the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures Act) 2003 (Cth) which states that “the undertaking will cover the whole relevant period even if the person is subsequently granted another visa during that period, or becomes a citizen and does not hold any visa for the remainder of that period.” I agree with the advice which DIAC gave to Centrelink.
[13] T12, page 159.
For the above reasons, I consider that Mr and Mrs Brooking’s Subclass 143 visas ceased to be in effect when they were granted citizenship, but they have not been cancelled.[14] I therefore find that s 18(b) of the Determination does not apply to bring an end to the AoS.
[14] See also Christanty and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 497 where a similar finding was made.
Are there special circumstances that justify cancellation of the AoS
Mr Brooking contends that there are special circumstances because it is impossible for him or his wife to claim any of the social security payments now or in the foreseeable future, and that a sum of money is being held for no purpose. He refers to “guidelines with regard to ‘special circumstances’” and cites some case law addressing the expression. He does not specify which guidelines he is referring to. I accept that other sections of the social security legislation refer to “special circumstances”, and there is a significant body of case law in relation to determining whether special circumstances exist, but the circumstances which permit the cancellation of an AoS pursuant to s 18(d) of the Determination are clear and are circumscribed. The case law to which Mr Brooking refers relates to other provisions of the Act where the facts that could constitute special circumstances are not specified, and so decision-makers have a broad discretion as to facts which might constitute special circumstances for the purposes of the sections in question.
I understand Mr Brooking’s concern as to the futility of having money held by the government in case a recoverable social security payment were to be made to the assuree(s) when a claim for those social security payments could not be made, but that situation is not included in the “special circumstances” provided for in s 18 of the Determination. There is no evidence of any accident, disability, illness or other circumstance that has critically affected Ms Jones’ ability to provide adequate support.[15] I therefore consider that s 18(d) of the Determination does not apply to bring an end to the AoS.
[15] The other factor set out at s 18(d)(ii), being the incapacity of a person identified in an AoS to travel to Australia before the expiration of a visa, is not relevant here given that Mr and Mrs Brooking are now citizens.
Perceived unfairness and absurdity
Mr Brooking has indicated that the money given as security is his money. He raised that the security is being held by government decree in a private bank account without guarantee, and considers this to be a serious issue given the past financial crisis and present uncertainty about stability of the banks. However, he has produced no evidence that this uncertainty applies to Australian banks, or to the particular bank involved in his case, which is one of Australia’s four major trading banks. He also regards it grossly unfair and absurd that the government expects a guarantee from him should he make a social security claim yet he has no guarantee for the safety of his money in return. He argues that his situation is one of “unfairness and absurdity” as described in the case of Berenguel v Minister for Immigration and Citizenship[16], which he states requires the Minister or his delegate under s 55 of the Migration Act to apply the latest information to avoid unfairness and absurdity.[17] He states the latest information is that there is little or no possibility of he or his wife making any of the relevant social security claims.
[16] (2010) 264 ALR 417; (2010) 114 ALD 1.
[17] Mr Brooking also refers to what he describes as the High Court case of “Bathini” in relation to the same point regarding s 55 of the Migration Act. However it is apparent he is referring to a decision by the Migration Review Tribunal, citation [2010] MRTA 1777, which discusses the implications of the Berenguel case.
In relation to Mr Brooking’s contention concerning s 55 of the Migration Act, I do not accept that s 55 is applicable. That section relevantly provides that until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. Section 55 clearly deals with the making of visa applications. This matter is not concerned with the making of any visa applications, and s 55 is therefore irrelevant.
Mr Brooking has also contended that the Acts Interpretation Act 1901 (Cth) (the Interpretation Act) takes “precedence” over the Act. He contends that the Interpretation Act requires that we look to the original intention of the rule maker and whether the rule maker would intend for this sort of result. The provision which addresses this issue is s 15AA of the Interpretation Act, which provides as follows:
15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would
best achieve the purpose or object of the Act (whether or not that
purpose or object is expressly stated in the Act) is to be preferred
to each other interpretation.
Section 15AB of the AIA then goes on to provide for the use of extrinsic material in the interpretation of an Act. These provisions are directed to facilitate a certain construction promoting the purpose or object of an Act in interpreting it. It does not permit a decision maker to supplement existing legislation by including powers or discretions that are not available in the legislation. In any event, there are indications, to which I have referred above, that an AoS was not intended to be affected by circumstances of the kind relied upon by Mr Brooking.
Mr Brooking has expressed frustration that for over four years a large number of Centrelink officers have been unable to appreciate the “essential pure silliness” of having money put aside for a purpose that will never be used. He contends that there is a clear need for a complete review of the AoS scheme as it applies to the Contributory Parent visa, and that the legislation should be changed to at least bring the requirements of this visa in line with other visas which have an AoS period of two years. However that may be, Centrelink has given effect to the undertakings which were given when the AoS was issued and to the terms of the AoS, and its officers are required to administer the Act in accordance with its terms. I am satisfied that they have done so, and that the SSAT’s decision was correct.
DECISION
The decision under review is affirmed.
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