Tadela and Child Support Registrar (Child support)
[2017] AATA 957
•23 June 2017
Tadela and Child Support Registrar (Child support) [2017] AATA 957 (23 June 2017)
Division:GENERAL DIVISION
File Number: 2016/6135
Re:Kiros Tadela
APPLICANT
AndChild Support Registrar
RESPONDENT
DECISION
Tribunal:Senior Member CR Walsh
Date:23 June 2017
Place:Perth
The Tribunal affirms the decision under review.
.....................[sgd]...................................................
Senior Member CR Walsh
CATCHWORDS
CHILD SUPPORT – Applicant has a substantial child support liability – departure prohibition order (DPO) issued to Applicant - Applicant’s application for departure authorisation certificate refused by Respondent – whether Applicant will depart from an return to Australia within an appropriate period - whether the Respondent will be required to revoke DPO – whether it is necessary for Applicant to give security for his return to Australia – whether Applicant able to give such security - decision under review affirmed
LEGISLATION
Child Support (Registration and Collection) Act 1988 – s 3 – s 72D – s 72I - s 72K - s 72L - s 72M - s 72Q - s 116
CASES
Agrippa and Horton (SSAT Appeal) [2010] FMCAfam 1144
Askew and Child Support Registrar [2014] AATA 354
Bettison and Child Support Registrar (Child support second review) [2016] AATA 592
Botel and Child Support Registrar (Child support second review) [2016] AATA 53
Kay and Child Support Registrar [2015] AATA 429
O’Neill and Child Support Registrar[2010] AATA 545
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shahani and Child Support Registrar [2014] AATA 312
Valve and Child Support Agency [2009] AATA 927
SECONDARY MATERIALS
Child Support Guide – Version 4.24 – Released 8 May 2017
REASONS FOR DECISION
Senior Member CR Walsh
23 June 2017
INTRODUCTION
Mr Tadela seeks review of a decision of the Child Support Registrar (Registrar), made on 12 September 2016, to refuse an application made by him for a Departure Authorisation Certificate (DAC) to be issued to him under s 72L of the Child Support (Registration and Collection) Act 1988 (Registration and Collection Act).
FACTUAL & PROCEDURAL BACKGROUND
Mr Tadela is a New Zealand citizen who was born in Ethiopia. He is lawfully resident in Australia under a Special Category 444 Visa. This visa is only available to New Zealand citizens and allows the holder to come to, and remain in, Australia for an unspecified period. The visa has no expiry date but ceases when the holder departs Australia.
A child support debt owed by Mr Tadela was registered with, and became collectable by, the Department of Human Services (Department) on 6 March 2015 in respect of his children, X (born in 1991), Y (born in 1995) and Z (born in 1998).
The debt arises out of a New Zealand Inland Revenue child support assessment issued to Mr Tadela. However, as part of a reciprocal agreement between Australia and New Zealand, the debt was transmitted to the Department for collection as Mr Tadela ordinarily resides in Australia.
On 5 August 2016, a delegate of the Registrar issued a Departure Prohibition Order (DPO) to Mr Tadela pursuant to s 72D of the Registration and Collection Act. The DPO prevents Mr Tadela from travelling outside of Australia and is currently in force. The DPO states:
It is an offence for you to attempt to leave Australia while a Departure Prohibition Order is in force unless you have a valid Departure Authorisation Certificate.
…
You can apply for a Departure Authorisation Certificate. If granted, this certificate will allow you to leave Australia under agreed conditions. The application can be made verbally or in writing.
On 8 September 2016, Mr Tadela made a verbal application to the Department for a DAC, Mr Tadela requested a DAC to depart Australia to travel to Ethiopia to visit his father, who is unwell. Mr Tadela told the Department that he wished to depart “as soon as practically possible” and proposed to remain in Ethiopia for a period of up to four months.
On 9 September 2016, Mr Tadela made a lump sum payment of $5,000 towards his child support debt.
On 6 April 2017, Mr Tadela entered into a “Child Support Payment Arrangement” where he agreed to pay $240 per month with the first payment due on 7 May 2017 and continuing until 7 February 2028 and a final payment of $10.15 payable on 7 March 2028.
Mr Tadela currently has an outstanding child support liability of $31,378.59, comprising of $23,073.33 in child support arrears and $4,972.61 in penalties. The Department issued a “Certificate Under Sub-section 116(2) of the Child Support (Registration and Collection) Act 1988”[1] which provides:
I hereby certify that the following amounts totalling $31,378.59 are due and payable by KIROS ASSEFA TADELA and remain unpaid as at the 18th Day of April 2017 in respect of registered maintenance liabilities:
· Child support debt of $23,073.33
· Penalties of $4,972.61
(emphasis added)
[1] A s 116(2) certificate is prima facie evidence of the liability due and payable by Mr Tadela. Mr Tadela’s debt includes Australian penalties for outstanding payments which were omitted from the certificate.
By letter dated 12 September 2016, the Registrar refused Mr Tadela’s verbal application for a DAC (Refusal Decision). The Refusal Decision states:
Your application has been refused by the Delegate for the following reasons:
- it is unlikely that the order issued against you will be revoked within the appropriate period.
- humanitarian grounds have not been established.
On 11 November 2016, Mr Tadela applied to the Tribunal for review of the Refusal Decision.
ISSUES
The primary issue for determination by the Tribunal in this application is whether Mr Tadela should be issued a DAC.
This requires consideration of the following issues:
· whether, if the DAC were granted, Mr Tadela would be likely to return to Australia within an appropriate period;
· whether, within an appropriate period, the Registrar would be required to revoke the DPO issued to Mr Tadela;
· whether Mr Tadela is required to and has provided sufficient security for his return to Australia;
· whether Mr Tadela is unable to provide security;
· whether a DAC should be issued to Mr Tadela on humanitarian grounds; and
· whether refusing to issue a DAC to Mr Tadela would be contrary to Australia’s interests.
ANALYSIS
Objects of the Registration and Collection Act
The legislation governing DPOs and DACs is set out in Part VA of the Registration and Collection Act.
Section 3(2) of the Registration and Collection Act provides that it is the intention of the Parliament that the Registration and Collection Act shall be construed and administered to the greatest extent consistent with the attainment of its objects.
Section 3(1) of the Registration and Collection Act provides that:
3 Objects of the Act
(1) The principal objects of this Act are to ensure:
(a)that children receive from their parents the financial support that the parents are liable to provide; and
(b)that the periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis; and
(c)that Australia is in a position to give effects to its obligations arising from family relationship parentage or marriage.
Departure Prohibition Orders
Section 72D of the Registration and Collection Act provides that the Registrar “may” make a DPO prohibiting a person from departing from Australia for a foreign country if the following four conditions are met:
(a) the person has a child support liability; and
(b)the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and
(c)the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:
(i)child support debts arising from a registrable maintenance liability under section 17; or
…
(d)the Registrar believe on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) wholly discharging the child support liability; or
(ii)making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.
In this case, the Tribunal has no jurisdiction to consider whether a DPO should have been imposed on Mr Tadela by the Department: O'Neill and Child Support Registrar [2010] AATA 545). The Tribunal is limited in its jurisdiction to review of the Refusal Decision. If Mr Tadela is aggrieved by the making of the DPO, the appropriate course is for him to appeal to the Federal Court of Australia or the Federal Circuit Court of Australia against the making of the order pursuant to s 72Q of the Registration and Collection Act.
Departure Authorisation Certificates
Section 72K of the Registration and Collection Act provides:
72K Application for departure authorisation certificate
(1)A person in respect of whom a departure prohibition order is in force may apply for a certificate authorising the person to depart from Australia for a foreign country (a departure authorisation certificate).
Section 72L of the Registration and Collection Act sets out the circumstances in which the Registrar “must” issue a DAC. That section provides:
72L When Registrar must issue departure authorisation certificate
(1)This section applies if a person makes an application under section 72K for a departure authorisation certificate.
(2)The Registrar must issue the departure authorisation certificate if the Registrar is satisfied:
(a) that, if the certificate is issued:
(i)it is likely that the person will depart from Australia and return to Australia within a period that the Registrar considers appropriate; and
(ii)it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of the person; and
(b)that it is not necessary for the person to give security under section 72M for the person’s return to Australia.
(3)If the Registrar is not satisfied as mentioned in subsection (2), the Registrar must nevertheless issue the departure authorisation certificate if:
(a)the person has given security under section 72M for the person’s return to Australia; or
(b)if the person is unable to give such security, the Registrar is satisfied:
(i)that the certificate should be issued on humanitarian grounds; or
(ii)that refusing to issue the certificate will be detrimental to Australia’s interests.
Section 72M of the Registration and Collection Act provides:
72M Security for person’s return to Australia
(1)A person may give such security as the Registrar considers appropriate by bond, deposit or any other means, for the person's return to Australia by such day as is agreed by the person and the Registrar and is specified in the departure authorisation certificate.
Administrative decision makers must have regard to applicable government policy, insofar as that policy is not inconsistent with the legislation, unless there are cogent reasons not to do so.[2] Child Support legislation is administered with the assistance of policy set out in the Child Support Guide (Guide).
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644 per Brennan J.
Chapter 5.2.11 of the Guide relates to DPOs and DACs. The following extracts of the Guide are relevant to this application:
DAC where debtor is likely to depart & return, revocation likely, & security not necessary
The Registrar is required to issue a DAC when satisfied that (section s72L(2)):
·if the DAC is issued, it is likely that the child support debtor will depart from Australia and return within an appropriate period, and
·if the DAC is issued, it is likely that the Registrar will be required by section 72(1) to revoke the DPO, and
·it is not necessary for the person to give security for their return to Australia.
DAC is issued where security provided
If the Registrar is not satisfied that the 3 requirements above have been met, a DAC must still be issued when the child support debtor has given appropriate security, under section 72M, for their return to Australia (section 72L(3)(a)). Security can be given by a bond or a deposit or by other means. If the debtor does not return by the agreed date, the security will be forfeited to the Commonwealth of Australia. It cannot be applied against the outstanding child support debt.
The Registrar will only accept a security that:
·is in a form that is readily convertible to cash e.g. bank cheque,
·is offered by the debtor rather than third parties on the debtor’s behalf,
·is generally not significantly less in value than the amount of the debt owing.
Note: security arising from a loan obtained by a child support debtor from a financial institution or a third party is not considered to be a payment from a third party.
If a child support debtor is able to give appropriate security, the use of those funds to reduce the child support debt is preferred to their use as a security. Wholly discharging the debt or making a satisfactory arrangement to discharge the debt and meet any ongoing child support liability will generally result in a DPO being revoked (section 72I). Where the debt is in dispute and a person is taking steps to resolve this dispute, offering security could be an appropriate alternative.
DAC issued on humanitarian grounds or in Australia’s interests
The Registrar must also issue a DAC where satisfied that (section 72L(3)(b)):
·the certificate should be issued on humanitarian grounds, or
·refusing to issue the certificate would be detrimental to Australia’s interests.
AND
·the debtor is unable to provide security, under section 72M, for their return to Australia.
In considering the meaning of ‘unable’ in this context, the Registrar must be satisfied that the debtor could not, in the existing circumstances, provide appropriate security. It is not sufficient that the debtor is merely unwilling to provide security or unable to satisfy the Registrar as to the appropriateness of the security offered.
Where a DAC is sought on humanitarian grounds, the debtor must supply evidence to support:
·the contention they are unable to give security to the satisfaction of the Registrar, and
·the humanitarian grounds relied upon in the application for the DAC.
It follows that there are two main sets of circumstances in which the Registrar “must” issue a DAC to Mr Tadela under s 72L of the Registration and Collection Act.
The first set of circumstances is set out in s 72L(2) of the Registration and Collection Act, and requires the Registrar to be satisfied:
· that Mr Tadela will depart from and return to Australia within an appropriate period; and
· it is likely the DPO will be required to be revoked in an appropriate period; and
· it is not necessary for Mr Tadela to provide security under s 72M for their return.
For the following reasons, the Tribunal is not satisfied that Mr Tadela will return to Australia within an appropriate period:
· Mr Tadela has stated that he wishes to travel to Ethiopia to visit his “sick father before he dies”. The proposed period of four months is excessive when balanced against the reason for travel;
· Mr Tadela’s child support liability is substantial (currently totalling $31,378.59) and he does not have any administrative or legal avenues through which his New Zealand Inland Revenue child support assessment/s can be reviewed in Australia; and
· Mr Tadela was born in Ethiopia and is a citizen of New Zealand. Consequently, he is not entitled to income support payments in Australia, where he might be in Ethiopia or New Zealand.
For the following reasons, the Tribunal finds that it is not likely that the DPO will be required to be revoked in an appropriate period of time pursuant to s 72I of the Registration an Collection Act:
· the section 116(2) certificate is prima facie evidence of Mr Tadela’s child support debt in the amount of $31,378.59, comprising of $23,073.33 in child support arrears and $4,972.61 in late payment penalties;
· Mr Tadela’s child support liability is substantial (currently totalling $31,378.59) and based on the payment arrangement of $240 per month, it will take approximately 11 years to discharge the liability. This arrangement cannot be considered satisfactory to wholly discharge Mr Tadela’s child support liability;
· Mr Tadela has failed to fully disclose his financial position to the Department so it is unable to properly assess his capacity to pay the child support liability. For example, Mr Tadela told the Department that after leaving his full-time employment with Inghams he had no job and no income. However, Mr Tadela’s ANZ bank statements reveal Mr Tadela has, in fact, been working part-time as an Uber driver and that his income from doing this is not insignificant. Indeed, his income, as a part-time Uber driver, exceeds what he was earning full-time at Inghams. When he was asked, in cross-examination, to explain this, Mr Tadela said that he did not think he had to disclose his Uber income as it was only a part-time job. It is well-established that parents involved in child support proceedings, whether administrative or judicial, are under a duty to make full and frank disclosure of all their financial circumstances and in the absence of full and frank disclosure, the decision make should be reasonably robust in assessing the non-disclosing parent’s financial circumstances adversely to that parent and in the favour of the other parent: see for example Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144 at [24]-[25]; and
· the child support liability is not completely irrecoverable, as Mr Tadela has paid a lump sum amount of $5,000 towards the liability and continues to make ongoing monthly payments of $240 per month pursuant to his payment arrangement with the Department. Even the smallest recovery would mean that the liability was not “completely irrecoverable”: Shahani and Child Support Registrar [2014] AATA 312 at [12].
For the following reasons, the Tribunal finds that it is necessary for Mr Tadela appropriate security for his return to Australia:
· Mr Tadela presents a flight risk as he is not entitled to income support payments in Australia, where he might be in Ethiopia or New Zealand;
· Mr Tadela’s child support liability is substantial (currently totalling $31,378.59) and he does not have any administrative or legal avenues in Australia through which his New Zealand Inland Revenue child support assessment/s can be reviewed; and
· Mr Tadela has a history of non-compliance in relation to his child support liability.
The question of appropriate security requires consideration of all relevant circumstances to determine whether the security to be given is appropriate or suitable for its stated purpose, namely to ensure Mr Tadela returns to Australia by an agreed date.
In summary, any security needs to be:
· given by Mr Tadela himself rather than a third person: Kay and Child Support Registrar [2015] AATA 429 (Kay) at [48];
· in the form of a deposit, a bond, or some other like form that is readily convertible to cash; and
· not be substantially less than the outstanding child support liability: Botel and Child Support Registrar (Child support second review) [2016] AATA 53 at [7]; Askew v Child Support Registrar [2014] AATA 354 at [21] Senior Member McDermott (as he then was); Valve and Child Support Agency [2009] AATA 927 at [18] per Deputy President Tamberlin J.
Prior to hearing, Mr Tadela had given no offer of security, for his return to Australia, to the Department. However, at the hearing, Mr Tadela told the Tribunal that he would be able to provide security of $7,000 to $10,000 in a month’s time as he would borrow that money from friends, but provided no independent evidence to support this statement.
For all of the reasons outlined above, the Tribunal finds that Mr Tadela does not meet any of the conditions in s 72L(2) of the Registration and Collection Act.
The second set of circumstances is set out in s 72L(3) of the Registration and Collection Act. The Registrar “must” issue a DAC where:
· the person “has given” the appropriate security for their return to Australia pursuant to s 72M; or
· the person is unable to provide security, the Registrar (and, in his shoes, the Tribunal) is satisfied:
· the DAC should be issued on humanitarian grounds; or
· that refusing to issue the DAC will be detrimental to Australia’s interest.
As stated above, to date, Mr Tadela has not “given” any security under s 72M for his return to Australia. Consequently, the first limb of s 72L(3) is not satisfied.
The alternative limb only applies in circumstances where Mr Tadela is unable to provide appropriate security.
As the Tribunal stated in Bettison & Child Support Registrar (Child support second review) [2016] AATA 592 (Bettison) at [10]:
The evidential onus is on the Applicant to establish a lack of financial capacity to provide security. The requisite inability to be demonstrated must be financial and not circumstantial.
Mr Tadela has provided evidence that he has $6,148.51 available funds in his Commonwealth Bank Account as at 31 January 2017. However, this does not equate with full and frank disclosure of his financial circumstances.
Mr Tadela’s Commonwealth bank statements show that:
· on 3 June 2016 he received a payment of $17,968.04 from Inghams (which is described on the bank statement as “Salary”);
· on 10 June 2016 he received a further payment of $18,000 from Inghams; and
· on 21 June 2016 he made a loan repayment of $15,599.05.
Austrac transaction records indicate that Mr Tadela has regularly transferred variable sums to beneficiaries in Ethiopia since August 2010, which might have otherwise been put towards his substantial child support liability. The most recent transactions are as follows:
· On 26 February 2016, Mr Tadela transferred the sum of $100 to a beneficiary in Ethiopia;
· On 4 March 2016, Mr Tadela transferred the sum of $1,460 to a beneficiary in Ethiopia; and
· On 20 July 2016, Mr Tadela withdrew the sum of $14,000. Mr Tadela advised the Department that this money was placed on an international travel card for a holiday. However, at the hearing Mr Tadela told the Tribunal that he sent this amount to his unwell father in Ethiopia.
In other words, in June 2016 Mr Tadela received a total amount of $35,968.04 from Inghams and instead of using some or all of this money to repay his child support liability he instead chose to repay $15,599.05 off his loan and to send $14,000 to his unwell father in Ethiopia. When asked, in cross-examination, why he made this choice he responded by saying it was “his money to do with as he wishes”. In such circumstances, Mr Tadela has failed to provide fully and frank disclosure of his financial circumstances. Accordingly, there is insufficient evidence before the Tribunal to support a finding that Mr Tadela is unable to provide appropriate security for his return to Australia. As stated above, at the hearing, Mr Tadela advised the Tribunal that he would be able to provide security of $7,000 to $10,000 in a month’s time as he would borrow that money from friends. However, he provided no independent evidence to support this statement.
Consequently, it is unnecessary for the Tribunal to consider whether there are “humanitarian grounds” on which a DAC should be issued to Mr Tadela, or whether the refusal to issue a DAC to Mr Tadela would be detrimental to Australia’s interests: see for example Kay at [62].
However, for completeness, the Tribunal notes that a DAC should not be issued to Mr Tadela on “humanitarian grounds” for the following reasons.
The Guide states the following in relation to what is meant by “humanitarian grounds”:
Humanitarian grounds include compassionate grounds.
…
Claims that a DAC should be issued on humanitarian grounds will be dealt with on their merits. The onus is on the child support debtor to satisfy the Registrar of the circumstances relevant to the application.
In Bettison, the Tribunal considered the authorities, relevant to the issue of a DAC on humanitarian grounds, and stated:
11.The general theme of the authorities seems to condition the concept of “humanitarian grounds” with:
i.The quality and compelling nature of the proffered medical evidence;
ii.The certified quantum of child support liability;
iii.The evidence of steps taken by an applicant to reduce that liability by way of contributions beyond the bare minimum compulsorily deducted by the Registrar; and
iv.The danger an Applicant for a DAC may not return to Australia.
Mr Tadela’s personal circumstances, and those of his family, are clearly relevant considerations in the exercise of determining whether or not a DAC ought to be granted to him on compassionate grounds. In particular, the ill-health of Mr Tadela’s father, who resides in Ethiopia, is relevant.
A medical certificate, received 1 September 2016, indicates that Mr Tadela’s father suffers from heart disease. A medical certificate from Migbare Senay General Hospital in Ethiopia, dated 4 March 2017, indicates that Mr Tadela’s father suffers from “hypotension, ischemic, stroke”. That certificate also states that Mr Tadela’s father was admitted to the Migbare Senay General Hospital on 1 March 2017 and that he is in a coma.
This evidence provides insufficient detail about Mr Tadela’s father’s medical conditions and, in particular, in relation to how long Mr Tadela would need to be by his father’s bedside in Ethiopia. That is, as contended by the Registrar, this medical evidence is in short form and has not been prepared for the information or reliance of an external enquirer seeking to form a view about his father’s present state of health. The Tribunal finds that this evidence is not compelling as to whether “humanitarian grounds” presently exist to justify the issue of a DAC to Mr Tadela: Bettison at [16].
In any event, the health of Mr Tadela’s father, and his desire to provide care for him, needs to be weighed against the need for the effective enforcement of his child support liability: refer to the discussion on the “Objects” of the Registration and Collection Act in paragraphs 15 and 16 above. As submitted by the Registrar, other relevant factors are:
· Mr Tadela’s failure to provide full and frank disclosure of his financial circumstances;
· that there is evidence that Mr Tadela has had the financial capacity to address his child support debt beyond the voluntary payments that have been made but he has chosen not to do so: refer to paragraphs 38 to 40 above; and
· issuing the DAC effectively removes a strong incentive for Mr Tadela to pay a very sizeable debt, the payment arrangement he has in place with the Department is less than satisfactory in the circumstances (refer to paragraph 28 above) and no appropriate security has been given by Mr Tadela for his return to Australia.
For the above reasons, the Tribunal finds that Mr Tadela does not meet the criteria in s 72L(3) of the Registration and Collection Act.
DECISION
For the above reasons, the Tribunal affirms the Refusal Decision.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh
................[sgd]........................................................
Administrative Assistant
Dated: 23 June 2017
Date of hearing: 14 June 2017 Applicant: In person Representative for the
Respondent:Mr A Burgess Solicitors for the Respondent:
Sparke Helmore Lawyers
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