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Social Security Reporter |
Assurance of support: distinction between cancellation and cessation of visa
(2010/154)
Decided: 2nd March 2010 by N. Isenberg
Aboumelaya’s brother, Ismael, planned to marry Hassaan, an Egyptian woman. As Ismael was receiving social security benefits he was unable to provide an assurance of support for her and Aboumelaya agreed to provide the assurance of support.
On 30 December 2008 Centrelink wrote to Aboumelaya advising him that Hassaan had been issued with a visa; consequently the assurance of support was in force for a period of two years from 5 November 2008 to 4 November 2010. The letter reminded him that he was responsible to ensure Hassaan had sufficient direct or indirect support so that she did not require support from Centrelink.
Hassaan claimed and was paid newstart allowance on 5 February 2009.
Aboumelaya contacted Centrelink requesting the assurance of support be cancelled on the basis that he had been deceived by Hassaan. He was informed that the assurance of support would remain in place.
Section 1061ZZGEA Social Security Act 1991 (the Act) provides that an assurance of support cannot be withdrawn once a visa is granted in connection with the assurance, and remains in force except for very limited circumstances: s.1061ZZGF.
Section1061ZZGG of the Act provides that the assurer is liable to pay social security benefits paid to the assuree during the period of assurance.
Under s.1061ZZGH of the Act, the Minister has made the Social Security (Assurance of Support) (DEEWR) Determination 2008 which provides:
18 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) ...
(b) the visa of a person identified in an assurance of support is cancelled.
(c) ...
(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) ....
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 assurance of support debt, the debt is a debt due to the Commonwealth.
Aboumelaya gave evidence that his brother lived in Western Australia and he had not seen him for 20 years. His brother met Hassaan overseas through his family and, after a very short traditional and formal courtship, they married. A spouse visa was granted but because his brother was on a ‘sick’ pension he was unable to provide an assurance of support in relation to Hassaan and she remained in Egypt. Ismael then asked him to provide the assurance of support, which he did because he thought his brother would provide for his new wife. He knew his brother wanted a new life and to settle down. He agreed that he knew the effect of the assurance of support, as he had previously provided assurances of support for his own wife and stepchildren and other family members.
Hassaan arrived in Perth but within a few days she had left her husband, gone to the police alleging domestic violence and had fled to a women’s refuge. Aboumelaya thought her visa was ‘cancelled’.
Soon after leaving her husband, Hassaan applied for, and received, social security benefits. Aboumelaya had been informed that a debt to Centrelink was accruing and in due course he might be called upon to refund any money paid to Hassaan by Centrelink. He had been informed that to date the amount paid to Hassaan exceeded $15,000.
The family in Egypt had subsequently told him and his brother that Hassaan intended to come to Australia ‘no matter what’. Aboumelaya said his brother had complained to the Department of Immigration and Citizenship when Hassaan left him. He and his brother believed they had been duped. He alleged that the women’s refuge in fact facilitated the scam.
Ismael told the AAT that while in transit to Australia, Hassaan had sent him a text message to the effect that she did not want him. At first she claimed it was a joke. Two days after she arrived she told him their marriage was finished and she wanted a ticket home. He bought her a ticket but she changed her mind and said she wanted to stay in Australia and she wanted to be his wife in name only. Within days she had left him and gone to a women’s centre in Perth, taking some money of his. He called the police and she was told, he said, that if she went back to Egypt there would be no charge. He bought her another ticket to Egypt but instead she went to another women’s refuge in Victoria. Ismael said she admitted she had used him and his brother. She allegedly boasted that she had ‘fooled’ the Department of Immigration and Citizenship and had obtained a visa. He immediately contacted Immigration.
In view of Aboumelaya’s contention that Hassaan’s visa had been ‘cancelled’, the AAT requested Centrelink to make enquiries about Hassaan’s current immigration status and, in particular, if her visa had in fact been cancelled.
The AAT was informed that Hassaan arrived in Australia on a Partner Subclass 309 (Temporary) visa granted offshore on 6 July 2008. This allows the visa holder to enter and remain in Australia until the permanent (Subclass 100) application is decided – usually two years. A Subclass 100 visa entitles the person to remain in Australia permanently, and confers eligibility to receive certain social security payments. The two year period may be reduced where there is evidence of family violence, as was alleged in this case.
Hassaan’s Partner Subclass 100 (Permanent) visa was granted on 2 April 2009 and her visa Subclass 309 ceased the same day. The legislation connecting the two visas does not use the word ‘cancellation’. There is a clear distinction under the Migration Act 1958 (the Migration Act) between a visa which is cancelled and a visa which has ceased. The ‘cancellation’ provisions in the Migration Act are linked to very specific circumstances: ss.82(1). ‘Cessation’ of a substantive visa is also specifically dealt with under the Migration Act. To that end, 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 in to effect’.
Because of the clear difference between cancellation and cessation, the AAT did not accept that Hassaan’s visa was ‘cancelled’ as Aboumelaya submitted and the provisions of s.18(b) of the Social Security (Assurance of Support) (FAHCSIA) Determination 2007 could not apply to bring an end to the assurance of support.
Aboumelaya did not dispute that he knew the effect of what he was signing when he provided the assurance of support. Accordingly, the AAT stated that he remained bound by the obligations contained in the document unless there were special circumstances that justified cancellation. The Determination notes that financial hardship on the part of an assurer will not of itself be considered a special circumstance.
The scope of what might be considered to be special circumstances was in the AAT’s view narrower than that applicable to other aspects of social security legislation: eg s.1237AAD Social Security Act 1991. The present Determination uses strong words: an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support. This differs from those in s.1237AAD which, in the absence of what amounts to dishonesty, require only that there are special circumstances (other than financial hardship alone) that make it desirable to waive rather than write off the debt. Even applying that section, in Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at 545, Keifel J, after referring to the Federal Court’s decision in Beadle’s case [1984] AATA 176; (1985) 60 ALR 225, observed that special circumstances:
Would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case [...] It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
Aboumelaya and Ismael contended that Hassaan ‘orchestrated’ the marriage for the sole purpose of gaining entry into Australia, which she would not have been able to do but for Aboumelaya’s assurance of support. The AAT said it was difficult to determine if Aboumelaya and his brother had been victims of a scam, or whether the arrangement made in Egypt did not meet the parties’ expectations when they came together in Australia. Aboumelaya and Ismael had made numerous attempts to convey their concerns to the Department of Immigration and Citizenship. The AAT accepted that both men – for different reasons – were deeply disappointed at what had occurred. Aboumelaya helped his brother and now faced a significant debt. However, whether they had been duped by Hassaan and her associates was not, ultimately, a matter which must be determined by the AAT.
The AAT referred to Cuc and Secretary, Department of Social Security [1994] AATA 361, which similarly, involved the breakdown of a family relationship within days of the arrival of the assuree in Australia. The Tribunal highlighted that the assuree’s promise was unconditional, even in circumstances where the person for whose benefit it had been entered had not played fair.
The AAT also referred to Fu and Secretary, Department of Family and Community Services [2004] AATA 357, where the Tribunal acknowledged that the failure of the relationship produced sad consequences, in the context of the assurance of support and the presence of domestic violence, but found such a circumstance does not of itself constitute a special circumstance.
The AAT referred to the more recent case of Yoosuf and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 969 where the Tribunal apparently had before it some evidence of a widespread practice of sham marriages, but also declined to find special circumstances.
The AAT stated that the obligation in the assurance of support was very clear. If there had been some fraud, it was a matter to be pursued elsewhere.
The AAT noted that two days after the hearing in December 2009 Aboumelaya’s wife of 31 years left him because of this matter. He said that while she had initially agreed that he should enter the assurance of support to help his brother, she was upset that they had been misled and their savings would have to be used to repay Centrelink for its support of Hassaan. Aboumelaya was devastated at his wife’s decision to leave him. He was depressed, had been prescribed medication and had started seeing a psychologist. The AAT accepted that the foreshadowed debt had a terrible effect on Aboumelaya’s marriage. The AAT also noted that Aboumelaya had also recently been found to suffer from liver and kidney problems, that his health had deteriorated and he was working reduced hours.
His average fortnightly pay was between $1500 and $1800, he owned an unencumbered house and had about $600,000 in his superannuation.
The AAT accepted that Aboumelaya’s financial circumstances had suffered in recent times due to his ill health, and the likely halving of his assets following the dissolution of his long marriage.
The AAT concluded that the circumstances which permit the cancellation of an assurance of support are extremely limited: an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support. While Aboumelaya might be ill, and his financial circumstances dramatically changed, the AAT found that his ability to meet his obligations under the assurance of support had not, at that stage, been critically affected.
The decision under review was affirmed.
[S.P.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2010/28.html