Tribunal: The Hon. Matthew Groom, Senior Member

This review concerned an Assurance of Support (AoS) debt, which is a commitment to repay any social security payments made by the Australian Government to individuals that are granted certain visas. The applicant in this matter had agreed to an AoS debt in 2006 for his mother, who was granted a Contributory Parent visa, and his sister, who was attached to the mothers application and also received a visa.

In 2008, the applicant’s sister lodged a claim for parenting payment, which was granted by Centrelink. An AoS debt expires after 10 years so in 2016 the applicant’s AoS in respect of his sister ceased and Centrelink found that the applicant had a total AoS debt of $118,59.79, made up of the parenting payments made to his sister in the 10 year period.

The applicant applied for an internal review of the decision, which affirmed the original decision. The applicant then applied to the AAT for a review of the decision. This review was considered in the Social Security and Child Support Division (SSCSD), which also affirmed the decision. Decisions made by the SSCSD are reviewable by the General Division of the AAT and the applicant applied to that division for a further review, which was the subject of this decision.

On 22 March 2018, Centrelink recovered $107,902.67 from a bank account of the applicant by way of garnishee order. This left an outstanding amount of debt however during the AAT hearing Centrelink’s respondent could not say whether or not the respondent proposed to take further action but made it clear that it reserved the right to do so.

The applicant’s claim was that the entire debt should be waived or written off because he should not be liable for his sister. His reasons included that it had the potential to cause him financial difficulty and it would impact on his capacity to provide assistance to his own children. He also claimed that his relationship with his sister had broken down and she had been married and her husband should have been able to provide for her.

The AAT may waive the recovery of a debt where there are special circumstances that warrant the waiver of all or part of a debt[1] and the AAT explained in its full decision what may constitute special circumstances in these situations.[2]

The AAT found that special circumstances did not exist that could justify a waiver of the applicant’s AoS debt as a whole. The Tribunal was however more sympathetic to the circumstances of the applicant in relation to his outstanding AoS debt. The AAT stated that the applicant had been left in the unenviable position of not knowing whether Centrelink proposes to pursue further debt action against him to recover any unpaid portion of the AoS debt. He had also been sent a number of communications by Centrelink that involved error on the part of Centrelink and caused confusion and uncertainty for the applicant. The AAT formed the view that the fact that the applicant continued to be uncertain about further debt recovery in respect of any outstanding amount was an unusual circumstance and one that was unfair on the applicant. The AAT was ultimately satisfied that there were special circumstances that justified waiving the outstanding amount of the applicant’s AoS debt.

The AAT set aside the decision under review and substituted a decision that the unrecovered amount of the applicant’s total AoS debt was waived.

Read the full written decision on AustLII.

 

[1] Section 1237AAD of the Social Security Act 1991

[2] See paragraphs 55 – 60 of the full decision.