Yoosuf and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 969

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 969

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2903

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NIZAM YOOSUF

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date31 October 2008

PlaceCanberra

Decision The decision under review is affirmed.

...........[Signed]..................................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - assurance of support debt - no grounds for waiver - decision affirmed

Social Security Act 1991 ss 729 1061ZZGA, 1061ZZGB, 1061ZZGC, 1061ZZGD, 1061ZZGE, 1061ZZGEA, 1061ZZGF, 1061ZZGG, 1061ZZGH, 1227, 1237A, 1237AAD, 1237AAE

Migration Regulations 1994 Division 2.7 reg 2.33.

REASONS FOR DECISION

31 October 2008 Mr S. Webb, Member         

1.      Nizam Yoosuf, an Australian citizen, entered into an arranged marriage with Shareefa Moulana, a woman from Sri Lanka. He sponsored Ms Moulana’s emigration to Australia as his partner and gave an assurance of support in respect of his new wife.[1] Ms Moulana was granted a visa and travelled to Australia in September 2001. The marriage failed and Ms Moulana left Mr Yoosuf in March 2002,[2] alleging domestic violence. She moved into a refuge, obtained legal aid and applied for a Permanent Resident visa, ultimately joining members of her family in Melbourne once the visa was granted. Ms Moulana applied for and was paid Special Benefit. Under the terms of the assurance of support provided by Mr Yoosuf, he was liable to repay the amount of benefit that was paid to Ms Moulana within the period of two years following the date of her arrival in Australia. Mr Yoosuf was notified of this fact[3] and was subsequently informed of the increasing balance of his assurance of support account.[4] Mr Yoosuf did not inform the Department of Immigration that his marriage to Ms Moulana had broken down, and he did not provide her with support. He challenged the requirement to repay any benefits paid to Ms Moulana on the basis that the arranged marriage was a sham in which he was duped, and that the perpetrator, falsely alleging domestic violence, was able to obtain government support and permanent residency in Australia. Mr Yoosuf claimed that he was the innocent victim, and yet he was unable to obtain any government support and had to bear the full cost of defending himself and repaying the benefits paid to Ms Moulana, over which he had no control or influence. Mr Yoosuf wrote many letters on this subject, some of which are in evidence. He did not, however, obtain satisfaction.

[1] T4.

[2] T18, folio 54.

[3] T8.

[4] T9 and T12.

2.      The period of Mr Yoosuf’s assurance of support came to an end in September 2003. It appears that Centrelink omitted to notify him of the total amount he would be required to repay[5] and took no further action at that time. Mr Yoosuf believed that the matter had come to an end. In 2006, however, a debt was raised against him in the amount of $13,180.88.[6] Surprisingly this fact was not communicated to Mr Yoosuf until sometime in October 2007.[7] Mr Yoosuf challenged the decision to raise and recover a debt from him in these circumstances. Thus far he has not been successful.

[5] T19.

[6] T21 folio 61.

[7] See for example T23.

3.      The issues for determination are:

(a)whether Mr Yoosuf has an assurance of support debt; and if so,

(b)the amount of the debt; and

(c)whether there are grounds to waive all or part of the debt in the circumstances.

does mr yoosuf have an assurance of support debt and, if so, what is the amount of the debt?

4.      At the outset of the hearing Mr Yoosuf agreed that he had given a formal assurance of support in respect of Ms Moulana in full knowledge of the legal obligations he was entering into. In his submission, however, the assurance he gave is a nullity because the Commonwealth did not inform him of all relevant information. The particular information to which Mr Yoosuf refers relates to abuse of the sponsored partner immigration program, including the requirements concerning assurances of support, by unscrupulous people who enter sham marriages to obtain partner visas and, once in Australia, allege domestic violence in order to obtain a permanent residence visa. Mr Yoosuf asserts that many such cases were known to the Department of Immigration at and before the date on which he provided an assurance of support. In support of this Mr Yoosuf tendered a recording of a 60 Minutes program and press clippings on the subject. He also pointed to the introduction of related amending legislation in November 2000 that was disallowed by the Senate.[8] Mr Yoosuf asserts that he would not have signed the Discretionary Assurance of Support form if such information had been provided to him. He says that because such information was not provided by the Commonwealth, the assurance of support contract is void ab initio and the debt raised against him by the Commonwealth is wrongful.  As a result, in Mr Yoosuf’s submission there is no debt and he is not liable to repay amounts of Special Benefit paid to Ms Moulana during the period of two years following her arrival in Australia on 2 September 2001. Mr Yoosuf did not dispute that the amount of Special Benefit she received was $13,130.88.

[8] Exhibit 1, Attachment A3.

5.      On the first point, I am satisfied that the assurance of support given by Mr Yoosuf is valid and effective. Even if Mr Yoosuf is correct and there were a substantial number of cases in which sponsored partner migrants obtained permanent residence in the manner described, and a corresponding number of Australian partners who had given assurances of support became liable to repay amounts to the Commonwealth, Mr Yoosuf’s submission is not made out. There are three things to say about this. Firstly, it appears that the introduction of legislation to amend the domestic violence provision in the partner visa application process was to provide a legal basis for Departmental officers to investigate claims of domestic violence where prescribed evidence has been provided. The disallowance of the amending legislation by the Senate simply means that the previously existing domestic violence provisions, requiring prescribed evidence in support of a claim, continue in force. Secondly, the material on which Mr Yoosuf relies is of a journalistic character. It is not reliable evidence of the extent of any abuse of the domestic violence provisions in the Partner visa application process and the related assurances of support provided by Australian partners. Thirdly, it is for Mr Yoosuf, and any other prospective assurer of support, to properly inform themselves about all matters that are relevant before committing to give an assurance of support. It is for them to properly verify the bona fides of the person in respect of which the assurance is to be given. In the present circumstances, it was for Mr Yoosuf to properly inform himself about Ms Moulana’s integrity and all other relevant matters before signing the assurance of support form. Even if he is correct about the extent of abuse of the domestic violence provision, those matters were in the public domain prior to the date on which he gave the assurance of support in respect of Ms Moulana.

6.      While feeling some sympathy for Mr Yoosuf, the fact remains clear that he gave an assurance of support, albeit by his own account without seeking legal or other advice, relying on his own knowledge. It is not reasonable to require the Commonwealth to provide information to all prospective assurers of support about the extent of any abuse or non-compliance with relevant laws.

7.      I am satisfied that the assurance of support Mr Yoosuf gave is valid and effective, and it is not a nullity ab initio. The Commonwealth’s action to raise and recover a debt from Mr Yoosuf on the basis of his assurance of support is valid if all other statutory requirements are satisfied.

8.      I have considered the relevant sections of the Social Security Act 1991 (the Act) concerning the meaning, giving, acceptance, notification, effect and relevant Ministerial Determinations concerning ‘assurance of support’,[9] and the assurance of support Mr Yoosuf declared in respect of Ms Moulana.[10] I am satisfied that Mr Yoosuf gave and, by his own account, fully understood the obligations attaching to the assurance of support declaration. His assurance was properly accepted and Mr Yoosuf was properly notified. The assurance had effect from Ms Moulana’s first date of arrival in Australia under the sponsored partner migration visa and continued for the period of two years. Once effective the assurance of support could not be withdrawn.

[9] Social Security Act 1991 ss 1061ZZGA, 1061ZZGB, 1061ZZGC, 1061ZZGD, 1061ZZGE, 1061ZZGEA, 1061ZZGF, 1061ZZGG, 1061ZZGH.

[10] T4.

9.      The evidence is, and it is not disputed, that Mr Yoosuf’s marriage to Ms Moulana broke down in December 2001 and, subsequently Ms Moulana left Mr Yoosuf on 25 March 2002. Mr Yoosuf notified Centrelink of this fact.[11] By his own account in or about December 2001 Mr Yoosuf consulted but did not formally notify the Department of Immigration that his marriage to Ms Moulana had broken down, as he should have done. It appears that the Departmental officer concerned took no further action at Mr Yoosuf’s request. On 25 March 2002 Ms Moulana claimed and was paid Special Benefit.[12] An interview with Mr Yoosuf was arranged.[13] I note that Ms Moulana’s claim for Special Benefit and any related determinations were not adduced in evidence. It can be accepted, nevertheless, that she was paid Special Benefit until 27 June 2003. Having checked the amounts paid to Ms Moulana, I am satisfied that the total amount paid was $13,130.88.

[11] T5 folio 31.

[12] T22.

[13] T6 folio 32.

10. By Mr Yoosuf’s account he did not pay Ms Moulana any support during the period in which she obtained Special Benefit. Special Benefit is specified for the purposes of s 1061ZZGG in the Minister’s Determination pursuant to s1061ZZGH and is specified in regulation 2.33 of the Migration Regulation 1994.

11.     That being so Mr Yoosuf is liable to pay the Commonwealth the amount Ms Moulana was paid in Special Benefit and that amount is a debt.[14]

[14] Social Security Act 1991 s 1227.

are there are grounds to waive all or part of the debt in the circumstances?

12.     Mr Yoosuf says that he should not be required to repay the debt because he was the innocent victim of a sham arranged marriage in relation to which he was duped.[15] He says that his marriage to Ms Moulana broke down in December 2001, within two months of her arrival in Australia. He explained that Ms Moulana had threatened to harm herself if he informed the Department, as she would be required to return to Sri Lanka. Mr Yoosuf said that, being mindful of these threats, he consulted the Department informally and subsequently informed Ms Moulana that he had done so. By his account very soon thereafter Ms Moulana left without notice and moved into a refuge. Mr Yoosuf asserts that Ms Moulana obtained support from the refuge and Legal Aid and made allegations against him concerning domestic violence. Charges were laid and he had to bear the cost of defending himself. Ultimately he says that the charges were found to be untrue and were dismissed by a Magistrate.  Evenso, Ms Moulana claimed and was granted a permanent resident visa.

[15] T19.

13.     In Mr Yoosuf’s submission the present law and the practices of the Department of Immigration encourage unscrupulous persons, who have entered Australia in sham marriages, such as Ms Moulana, to obtain permanent residence visas on domestic violence grounds, even when such grounds are not made out in fact. He says that in such circumstances, for the Commonwealth to assert liability on the grounds of the assurance of support provisions is both unfair and iniquitous. Mr Yoosuf handed up materials that suggest there may be a substantial number of such cases, and suggested that circumstances such as those in which he finds himself could not reasonably have been what the Parliament intended. Thus, in Mr Yoosuf’s submission his debt should be waived and the law should be changed.

14.     Unfortunately for Mr Yoosuf, there are no grounds on which his debt to the Commonwealth can be waived.

15.     It can be accepted that there was a substantial delay of approximately four years in raising and recovering the debt from Mr Yoosuf, and a lengthy delay in notifying him about the debt. Delays of this magnitude cannot be condoned and are not acceptable. This administrative failure is an error, but it does not, however, constitute an administrative error for the purposes of s1237A as no portion of the debt is attributable to the delay.

16.     Waiver in special circumstances under s1237AAD, and with reference to s1237AAE, is not available to Mr Yoosuf because, by his own account, Ms Moulana made a false statement and a false representation concerning her separation from Mr Yoosuf on grounds of domestic violence. There is scant evidence before me concerning what Ms Moulana stated or represented in her claim for Special Benefit. I note, however, that qualification for special benefit is subject to criteria set out at s 729 of the Act. Of relevance is sub-section 729(2)(h), with reference to sub-section 729(2C). As it appears to me on the present evidence Ms Moulana’s assertions concerning domestic violence were not made out and her reasons for leaving Mr Yoosuf remain opaque. Evenso an assurance of support was in force at the time she claimed special benefit. Mr Yoosuf was willing and able to provide support to Ms Moulana, the only bar being Ms Moulana’s assertions concerning domestic violence, and it was reasonable for Ms Moulana to accept that support. Thus, sub-section 729(2C) was satisfied in Ms Moulana’s case and she was not entitled to a special benefit. It follows, in all likelihood, that Ms Moulana made a false statement or made false representations concerning domestic violence involving Mr Yoosuf in order to obtain that Benefit, although that is not proven on the present evidence.

17.     On that basis, Mr Yoosuf’s debt cannot be waived under s1237AAD.

18.     That being so, the decision under review must be affirmed.

19.     Finally it is appropriate to observe in closing that the proper course for Mr Yoosuf, in the circumstances, was to notify the Department of Immigration that his marriage to Ms Moulana had broken down. For his own reasons he chose not follow do so. By so choosing he failed to mitigate his own exposure to liability under the terms of the assurance of support he had given the Commonwealth in respect of Ms Moulana. If Mr Yoosuf had followed the correct and proper course, his present circumstances may not have arisen and his exposure to an assurance of support debt would have been substantially reduced. Thus, as unfair as the circumstances may appear to Mr Yoosuf, it can be seen that his present difficulties are substantially of his own making.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.

Signed: ...........[Signed].......................................
  Demelza-Rose Gale           
  Associate

Date of Hearing  15 October 2008

Date of Decision  31 October 2008

Representative for the Applicant: Unrepresented

Representative for the Respondent:  Ms M. Welfare