TNNW and Secretary, Department of Social Services (Social security second review)

[2025] ARTA 1673

TNNW and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1673 (4 September 2025)

Applicant/s:  TNNW

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/0865

Tribunal:Senior Member J Walsh (second review)

Place:Brisbane

Date:4 September 2025

Decision:The Tribunal affirms the decision under review.

...............................[SGD].........................................

Senior Member J Walsh

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from these reasons for decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.

Catchwords: SOCIAL SECURITY – assurance of support – request for release of funds provided as security by way of bank guarantee – whether assurance of support should be cancelled – whether special circumstances, limited to accident, disability, illness or other circumstance, critically affected the Applicant’s ability to provide adequate support – finding ability to provide support not critically affected – decision under review affirmed.

Legislation:

Social Security Act 1991, Ch 2C, ss 1061ZZGEA and 1061ZZGH

Secondary Materials:

Social Security (Assurances of Support) Determination 2018, subparagraph 25(d)(i)

Statement of Reasons

1. The Applicant seeks the release of $14,000 he paid by way of a bank guarantee as a condition of his former wife’s parents being permitted into Australia on Parent (Migrant) (Class CA) (Subclass 143) Visas. The rules in this respect provide that the only way these funds can be released prior to 30 September 2026 is if the assurance of support he gave in this context is cancelled. It follows that the key issue in this case is whether the assurance of support should be cancelled. In turn, this requires me to consider whether there are special circumstances, limited to accident, disability, illness or other circumstance, that have critically affected the Applicant’s ability to provide adequate financial support so that cancellation of the assurance of support is justified.

Background

1. The assurance of support the Applicant gave in June 2015 was accepted in July 2015. He was then required to provide security by way of a bank guarantee in the sum of $14,000, which he did. Subsequently, his then parents-in-law entered Australia and have remained here.

2. In August 2022, the Applicant wrote to Centrelink seeking the release of the $14,000 bank guarantee. In September 2022, he lodged an Assurance of Support Bank Guarantee release form in which he made a claim of special circumstances, citing “divorce, mediation, court fee and lawyer, bankruptcy” as the reasons he contended the funds should be released to him. He provided supporting documents, including evidence that his date of bankruptcy was 17 May 2022. His application for release was refused.

3. The Applicant then sought review. He enlarged his claim of special circumstances, referring to significant dental surgery he said was urgently required. He provided two quotes for the proposed treatment, one for over $24,000 and another for over $31,000. He sought release of the funds to enable him to have the required treatment.

4. In May 2023, an authorised review officer found there were no special circumstances which would justify cancellation of the assurance of support. The decision to refuse early release of the bank guarantee was affirmed. The Applicant then applied to the Administrative Appeals Tribunal (AAT) for review.

5. In its reasons for decision dated 17 January 2024, the AAT took account of the matters the Applicant had previously raised. It also considered:

   ·an eye injury the Applicant had sustained, and which had resulted in him receiving WorkCover payments for five months before he returned to work on a graduated basis; and

   ·his poor mental health resulting from his financial problems, his health issues and the custody and access proceedings he had been engaged in.

   The AAT affirmed the decision not to release the bank guarantee.

6. In February 2024, the Applicant applied for further AAT review (second review). He provided additional material concerning test and imaging results of an enlarged prostate and raised PSA level as well as urinary issues.

7. On 14 October 2024, the AAT was replaced by the Administrative Review Tribunal (ART). AAT applications for review not finalised before that date transitioned to the ART to be considered and finalised in a manner the ART considered efficient and fair: clause 24, Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024. As far as possible, such applications were to be continued under the ART legislation.

Consideration

1. I conducted a telephone hearing on 27 August 2025. The Applicant was assisted by a Vietnamese interpreter. His case is that a combination of health-related and other problems amounts to special circumstances which should justify the release to him of the $14,000 bank guarantee.

2. The relevant legislative provisions in this matter are found in Chapter 2C of the Social Security Act 1991 (Act) and the Social Security (Assurances of Support) Determination 2018 (Determination) made under section 1061ZZGH of the Act. The provisions of the Determination applicable here have been in relevantly identical terms in previous versions of section 1061ZZGH determinations since at least 2008. Chapter 2C of the Act deals with assurances of support, including application requirements, security requirements and acceptance and rejection of assurance of support applications. Once accepted, an assurance of support cannot be withdrawn: section 1061ZZGEA of the Act.

3. There is no dispute in this case that the assurance of support given by the Applicant in 2015 continues in force until 30 September 2026, 10 years after the persons covered by the assurance arrived in Australia. Section 25 of the Determination deals with cancellation of an assurance of support prior to its expiry:

   25 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, other
   than a Community Support Programme entrant, is granted refugee status by the
   Australian Government;
   (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 is not, of itself, a special circumstance.

   The Applicant’s case is one under subparagraph 25(d)(i) of the Determination. Understandably, his focus has been on demonstrating that a combination of his particular circumstances amounts to special circumstances in this context. However, the terms of subparagraph 25(d)(i) make it clear that the “special circumstances” scope is limited to specified matters of accident, disability, illness or other circumstance that has “critically affected” the Applicant’s ability to provide adequate support. So, evidence of accident, disability, illness or the like, without more, will not be sufficient.

4. I accept that the Applicant has experienced a range of financial, relationship and health-related difficulties since he gave the assurance of support and provided the $14,000 bank guarantee:

   ·His marriage has broken down and he is now divorced. He has no contact with his ex-wife or daughter. Indeed, he does not know where they are, nor does he know the whereabouts of her parents. There were legal costs and considerable stress and anxiety involved in family law process.

   ·The Applicant entered voluntary bankruptcy in May 2022, after he had been told by a Centrelink staff member this could assist his claim for release of the bank guarantee funds. He was discharged from bankruptcy in May of this year. He still has a significant debt to the Australian Tax Office; there is no evidence he is making voluntary payments on this debt or that he is being actively pursued for repayment.

   ·The Applicant has very significant dental problems, treatment for which will involve considerable expense which he cannot afford. Serious infection has been a concern. He gave evidence that a work colleague had experienced a similar infection, and she ended up in intensive care for a period. He feared a similar fate. As a temporary measure, he has had the affected teeth removed to counter the risk of infection. The only way he might be able to have the recommended dental work undertaken would require him to borrow funds from his sister in Vietnam.

   ·The Applicant is concerned he may have prostate cancer; tests and imaging indicate this possibility should be further investigated. He is awaiting a biopsy but there is no set date as of yet. He also has a urinary tract blockage which prevents him from being able to fully empty his bladder. He has decided to await the prostate biopsy before getting this blockage treated. At hearing, he referred to material he provided on 19 August 2025 as demonstrating the seriousness of this condition. Most of this material appeared to be medical reports in Vietnamese. The Applicant referred to some English content. At the foot of one page, there is a warning in English advising “Patients may have acute urinary retention at any time” and to go to Emergency for treatment if this occurred. This advice was general in nature and did not specifically refer to the Applicant’s particular circumstances.

5. At the time he gave the assurance of support in 2015, the Applicant’s taxable income was $62,000. He continues to work for the same employer. His 2024 gross annual income was just above $89,000. At hearing, he confirmed he continues to work full-time. He said he has been “sacrificing” his Saturdays to work more than normal full-time hours. So, it seems likely his current income will have increased as a result. There is no evidence to suggest that his income-earning capacity has been adversely affected by his health issues. It is likely his overall financial circumstances have improved after his discharge from bankruptcy in May this year.

6. At hearing, the Applicant suggested, in hindsight, he thinks he may have been scammed by his ex-wife and her parents. That is not a matter I need to determine. It goes to explain his wish to no longer provide support or assistance; it does not address his ability to provide support, if required.

Conclusion

1. The real difficulty for the Applicant in this case is that, whilst he has experienced several significant problems of different kinds, there is no evidence that his ability to provide support under the assurance of support has been critically affected as a consequence. In my view, it is not open to find special circumstances which justify cancellation of the assurance of support within subparagraph 25(d)(i) of the Determination. It follows that the bank guarantee funds cannot be released to the Applicant.

Decision

1. The decision under review is affirmed.

Date of hearing:	27 August 2025
Date final submissions received:	27 August 2025
Applicant:	In person
Solicitors for the Respondent:	Ms Campbell, HWL Ebsworth Lawyers