Stojanovic and Department of Family and Community Services [1999] AATA 304 (24 February 1999)

Last Updated: 17 May 1999

CATCHWORDS - SOCIAL SECURITY - SPECIAL BENEFIT - assurance of support debt - Bosnian assuree- substantial change in circumstances beyond the persons's control - special benefit payable - debt raised and recovered at reduced rate.

Migration Act 1958

Migration (1993) Regulations - Schedule 2, Reg 5

Social Security Act 1991 - Part 5, Ss 729, 732, 739, 1227, 1237

Jovan Stojanovic and Secretary, Department of Social Security (unreported, Decision No 3575, 2 September, 1996, Deputy President Chappell and Mr Way and Ms Bullock)

Riddell v Secretary, Department of Social Security (114 ALR 340)

Secretary, Department of Family and Community Services and El Hawli now known as Hassan (unreported, Decision No. 4249, 27 November, 1998, Miss Shanahan)

DECISION AND REASONS FOR DECISION [1999] AATA 304

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/466

GENERAL ADMINISTRATIVE DIVISION )

Re RADMILLA STOJANOVIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

First Respondent

And SANELA PASAGIC

Second Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Miss A M Brennan (Member)

Mr I R Way (Member)

Date 24 February, 1999

Place Brisbane

Decision The Tribunal decides that:

(1) the decision that special benefit was payable to the second respondent from 13 May, 1997 is affirmed; and

(2) the decision regarding the assurance of support debt is set aside and there is substituted for that decision a decision that the amount of the assurance support debt to be raised and recovered from the applicant for the period 13 May, 1997 to 11 August, 1997 is to be calculated at the rate of $60.00 per week.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 28 May, 1998, the applicant, Mrs Radmila Stojanovic, applied for review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 11 May, 1999. In that decision, the SSAT affirmed a decision which had been made by a delegate of the first respondent, the Secretary of the Department of Family and Community Service (as the Department is now called) ("the Secretary") on 30 June, 1997 and which had been varied by a decision of an authorised review officer on 22 August, 1997. The delegate's decision, as it had been varied, was that Ms Sanela Pasagic was entitled to a special benefit with effect from 13 May, 1997 and that an assurance of support debt, which amounted to $1,040 at 11 August, 1997, be raised and recovered from Mrs Stojanovic.

2. At the hearing, Mrs Stojanovic represented herself with the assistance of her husband, Mr Zlatan Stojanovic. Ms Pasagic, who was the second respondent to the proceedings, also represented herself with the assistance of her partner. Mr Kanowski represented the Secretary. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence. Oral evidence was given by Mr and Mrs Stojanovic on their own behalf and by Ms Pasagic on her own behalf. Evidence was taken from, and submissions were made by, Mr and Mrs Stojanovic on the one hand and Ms Pasagic on the other as Ms Pasagic refused to be in the same room as Mr and Mrs Stojanovic. As we find below, we consider that Ms Pasagic's concerns about Mr and Mrs Stojanovic are unfounded. That, however, does not mean that her concerns are not real to her. As her concerns were real to her and she could not be persuaded that they were without foundation, we concluded that we were forced to exclude Mr and Mrs Stojanovic from the hearing at certain times and Ms Pasagic at others. If we had not done that, we would not have heard from Ms Pasagic (who is a party to the proceedings) at all.

3. At the conclusion of the hearing, we gave oral reasons and decided that:

(1) the decision that special benefit was payable to the second respondent from 13 May, 1997 is affirmed; and

(2) the decision regarding the assurance of support debt is set aside and there is substituted for that decision a decision that the amount of the assurance support debt to be raised and recovered from the applicant for the period 13 May, 1997 to 11 August, 1997 is to be calculated at the rate of $60.00 per week.

THE ISSUES

4. There were two issues in this case. The first was whether Ms Pasagic was entitled to a special benefit under the Social Security Act 1991. The second issue was whether an assurance of support debt was correctly raised and sought to be recovered from Mrs Stojanovic.

LEGISLATIVE FRAMEWORK

5. Assurances of support are the subject of Part 5 of the Migration (1993) Regulations ("1993 Regulations") made under the Migration Act 1958 ("Act"). Division 2 of Part 5 applies to Assurances of Support given after 19 December, 1991. In particular, regulation 5.6 provides that:

"In this Division:

'assurance of support' means an assurance of support that is given in relation to an application lodged after 19 December 1991;

'required assurance' means an assurance of support that is an unconditional requirement prescribed in Schedule 2 or 3 for the grant of a visa or entry permit;

'relevant entry permit', in relation to an assurance of support, means:

(a) the entry permit or entry visa for the grant of which the giving of the assurance of support was required; or

(b) the entry permit the grant of which on entry was a consequence of the grant of a travel-only visa for the grant of which the giving of the assurance of support was required."

6. A Class 806 Entry Permit is an entry permit which is the subject of Schedule 2 of the Migration Regulations. Clause 806.72 sets out the criteria which must be satisfied at the time of application. Clause 806.731 sets out the criteria which must be satisfied at the time of decision.

7. The form and duration of an assurance of support is dealt with in regulation 5.7 of the 1993 Regulations. It provides:

"(1) An assurance of support:

(a) must be on the form approved by the Minister; and

(b) has effect in respect of a person for the period of 2 years beginning on the day when that person enters Australia or is granted the relevant entry permit, whichever happens later.

(2) A required assurance is taken not to have been given unless the bond (if any) required by regulation 5.10 in relation to it has been lodged."

There was no question in this case that the assurance of support given by Mrs Stojanovic complied with these requirements.

8. The liability of a person giving an assurance of support is the subject of regulation 5.9. It provides:

"(1) If a person receives a payment in the form of:

(a) a job search allowance payable under Part 2.11 of the Social Security Act 1991; or

(b) a newstart allowance payable under Part 2.12 of that Act; or

(c) a special benefit payable under Part 2.15 of that Act;

and an assurance of support has effect in respect of the person when he or she receives the payment, the person who gave the assurance is liable, subject to this regulation, to pay to the Commonwealth the amount of the payment.

(2) A person is not liable to pay an amount that would otherwise be payable under subregulation (1) in respect of a required assurance until the Commonwealth has taken all reasonable steps to enforce the bond lodged in respect of the assurance.

(3) An amount payable under subregulation (1) is reduced by:

(a) any amount obtained by the Commonwealth under the bond that has not been applied to reduce a person's liability to the Commonwealth; and

(b) any amount paid to the Commonwealth in respect of the payment."

9. As Ms Pasagic has been paid a special benefit by Centrelink, the next question to consider is whether that special benefit was payable under Part 2.15 of the Social Security Act 1991 ("SS Act"). We will return to this aspect later in these reasons. If it was payable, the effect of regulation 5.9 is that Mrs Stojanovic is liable to pay the Commonwealth the amount of the special benefit paid to Ms Pasagic.

10. If Mrs Stojanovic is liable to pay an amount under the assurance of support, it may be recovered under the SS Act. The effect of section 1227 of the SS Act is that it is a debt due to the Commonwealth. Under Part 5.4 of that legislation, the Secretary may waive recovery of a debt but only in the circumstances set out in that part. Of relevance in this case are sub-section 1237A(1) and section 1237AAD.

11. Sub-section 1237A(1) provides:

"The Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt."

12. Section 1237AAD provides:

"The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or a false representation; or

(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c) it is more appropriate to waive than to write off the debt or part of the debt."

13. We will now return to the circumstances in which a person is entitled to be paid a special benefit. Section 729 of Part 2.15 sets out the criteria which a person must satisfy before he or she is qualified for a special benefit. A person is qualified if the Secretary determines, in accordance with sub-section 729(2) that a special benefit should be paid to a person for a period (sub-section 729(1)). Sub-section 729(2) provides that:

"The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

(a) no social security pension is payable to the person during the pension period; and

(b) no other social security benefit is payable to the person for the period; and

(ba) no youth training allowance is payable to the person for the period;

(c) ...

(d) ...

(db) ...

(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and

(f) the person:

(i) is an Australian resident; or

(ii) ...

(iii) ...

(iv) ...

(v) ...

(fa) the person is in Australia throughout the period;

(g) (Omitted.)"

14. The fact that a person is qualified for a special benefit does not necessarily guarantee that he or she will be paid that benefit. Sub-division B of Part 2.15 specifies the circumstances in which a special benefit is not payable to a person who is qualified to receive it. Sub-section 732(1) sets out the circumstances in which it is not payable. Of those circumstances, only that specified in paragraph 732(1)(da) is relevant. That circumstance arises where:

" (da) the person is subject to a newly arrived resident's waiting period and that period has not ended (see section 739A);"

15. Consideration needs to be given to section 739A. In general terms, that section provides that a person who enters Australia and becomes the holder of one of certain specified visas or a visa that is in a class of visas specified by the Minister, that person is subject to a "newly arrived resident's waiting period" (sub-section 739A(1)). In this case, Ms Pasagic is the holder of a Class B Resident P, Subclass 100 visa and so is the holder of a permanent visa to reside in Australia. Pursuant to sub-section 739A(5), the newly arrived resident's waiting period in respect of Ms Pasagic began on 4 May, 1997 when she entered Australia and ends 104 weeks later in 1999.

17. The only relevant exception to the imposition of the newly arrived resident's waiting period is found in sub-section 739A(7) which provides that sub-section 739A(1) does not:

"... apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control."

18. Section 739C provides that the Minister may set out guidelines for the exercise of the Secretary's discretion under sub-section 739A(7). The Secretary must exercise his powers under that sub-section in accordance with those guidelines (section 739B). Guidelines, known as the "Social Security (Access to Special Benefits by Newly Arrived Residents) Guidelines 1997" were issued by the Minister on 19 March, 1997 ("the Guidelines"). Clause 2 of the Guidelines states that they are intended to provide guidance to the Secretary for the purpose of forming an opinion in relation to the circumstances in which special benefits may be payable to a person during the newly arrived resident's waiting period.

19. Of particular relevance in this case are clause 4 and sub-clauses 5(1) and (3) which provide:

"4. Special benefit may be paid if the Secretary is satisfied that the claimant:

(a) has available funds of less than the equivalent of 2 weeks' benefit:

(i) if the claimant is a member of a couple and both members of the couple have claimed special benefit - at the rate applicable to the claimant and the claimant's partner if they were both receiving newstart allowance; or

(ii) in any other case - at the rate applicable to the claimant if the claimant were receiving a newstart allowance; and

(b) demonstrates that financial or in-kind support cannot be obtained from any other source.

5. (1) For paragraph 4(b), a claimant who is sponsored must have attempted to obtain support from the sponsor of the claimant unless subclause (2),(3),(5) or (6) applies.

...

(3) A claimant is not required to accept support from an individual sponsor if the Secretary is satisfied that:

(a) the claimant or a family member of the claimant is subject to abuse or violence by the sponsor or a member of the sponsors (sic) household; and

(b) the abuse or violence is supported by:

(i) a police report; or

(ii) documentary evidence that a court order for protection from apprehended violence has been granted and is is in force; or

(iii) a medical report; or

(iv) documentary evidence that the claimant has become a permanent resident because the Minister for Immigration and Multicultural Affairs is satisfied that the claimant has suffered domestic violence within the meaning of regulation 1.22 of the Migration Regulations."

BACKGROUND

20. We are satisfied that Mrs Stojanovic first became aware of Ms Pasagic and her husband, Mr Sirucic, because of her work with the Red Cross. She met Mr Sirucic once at the offices of Red Cross and then communicated with him by letter on four or five subsequent occasions over a period of a year while she assisted him with tracing Ms Pasagic. Mr Stojanovic also met Mr Sirucic but on only one occasion before he married Ms Pasagic. He complained that he was not allowed to have his wife in Australia. Mr Stojanovic considered that Mr Sirucic was a genuine person who was looking for work. Mrs Stojanovic has assisted many refugees and has sponsored many refugee families to come to Australia. As an employee of the Red Cross, she informed her superiors that she proposed to sign an assurance of support in respect of Ms Pasagic. She was very familiar with an assurance of support and the obligations it carried as she had previously signed such a document in respect of another person. Mrs Stojanovic had not been called upon to honour any of the obligations in respect of that other person.

21. Before signing an assurance of support on 19 February, 1997, in respect of Ms Pasagic, Mrs Stojanovic made enquiries at a Centrelink office as to how easily, or otherwise, social security benefits were paid to people in respect of whom an assurance of support had been given. We accept that Mrs Stojanovic was told that payments were not easily made and that the assurer had to be contacted before payments were made. Should it become necessary to support Ms Pasagic, Mrs Stojanovic was prepared to accept her into her family's home and to feed, support and accommodate her for two years.

22. Against that background, Mrs Stojanovic signed an assurance of support in respect of Ms Pasagic. Ms Pasagic migrated to Australia on 4 May, 1997. She migrated to Australia after she had re-established contact with Mr Sirucic who had previously lived next door to her grandmother in Yugoslavia and whom she knew from her frequent visits to her grandmother. Ms Pasagic and Mr Sirucic became friendly but lost contact with each other in 1993. In 1995, Ms Pasagic's father and brother, together with other members of her extended family, were killed. She contacted Mr Sirucic after reaching a Red Cross refugee camp and they talked of marriage. Mr Sirucic, who was now in Australia, returned to Bosnia and they were married on 22 October, 1996. Ms Pasagic and Mr Sirucic lived together for a short time in Bosnia before Mr Sirucic returned to Australia. Mr Sirucic began to make arrangements for her to migrate to Australia. He told her that he knew people with power who would help him to arrange her migration.

23. On 4 May, 1997, Ms Pasagic arrived in Australia. She did so after having been given a Class B Resident P, Subclass 100 visa and so is the holder of a permanent visa to reside in Australia. On 9 May, 1997, Ms Pasagic and her husband attended at a Centrelink office so that Mr Sirucic could obtain further benefit. Mrs Stojanovic attended at the office with them to "observe the process". This was the first occasion on which she had met Ms Pasagic. She understood that no payments would be made to Ms Pasagic as the assurance of support was in existence as was the newly arrived resident's waiting period. When a Centrelink officer told Mr Sirucic and Ms Pasagic that payments would be made from the following fortnight, Mrs Stojanovic questioned the decision in view of the assurance of support she had given. We accept that she was told that the officer knew nothing about the assurance of support and that special circumstances meant that the provisions of the Act relating to the newly arrived resident's waiting period did not apply to Ms Pasagic.

24. Ms Pasagic was extremely upset when giving her oral evidence as to what happened on her arrival in Australia. We also had the written report of Ms Lara Pollard, who is a social worker with Centrelink (T documents, pages 138-148). Ms Pollard set out in much greater detail the allegations which Ms Pasagic made in relation to Mr Sirucic's conduct. Taking all of that evidence into account, we are satisfied that she was tired and confused on her arrival in Australia. She believes that Mr Sirucic was insensitive and unfeeling towards her and even cruel. He had sexual intercourse with her which was, she said, without her consent. Whereas his actions towards her in Bosnia had been loving, his actions to her in Australia were proprietorial and uncaring. He subjected her to continuous psychological abuse and deprived her of all but her basic needs to survive. She was not permitted to leave the house or to visit other people , including her cousin and she was discouraged from permitting visitors to the house. She spent her time fearing for her safety and even her life while she was with Mr Sirucic. She feared that if she left he would kill her as he had threatened to do that.

25. Although we did not hear evidence from Mr Sirucic and so do not know whether Ms Pasagic's allegations are true or not, we are satisfied that she is very scared of Mr Sirucic. She is scared of him regardless of whether or not there is any objectively good reason for her to be scared and regardless of whether or not he abused her as she has alleged. Having heard her evidence and read Ms Pollard's report, we are also satisfied that, as a result of her being scared of him, she left him and moved to the home of her cousin and his wife.

26. A few days after she had left Mr Sirucic, contact was made with a social worker at a Centrelink office to see Ms Pasagic. Accommodation was arranged for her at a refuge. A temporary protection order was made in the Brisbane Magistrates Court on 12 May, 1997 and directed against Mr Sirucic. On 13 May, 1997, Ms Pasagic applied to Centrelink for a special benefit. At no time were any arrangements made for Mrs Stojanovic and Ms Pasagic to meet to discuss the manner in which Mrs Stojanovic could meet her obligations under the assurance of support. At no time did Ms Pasagic attempt to contact Mrs Stojanovic to discuss these matters with her. By this time, we are satisfied, Ms Pasagic knew that she had come to Australia after Mrs Stojanovic had given the assurance of support. Mrs Stojanovic offered to pay Ms Pasagic's airfare back to Bosnia if that was what she wanted and also offered to have her in their home.

27. Ms Pollard from Centrelink contacted Mrs Stojanovic on 14 May, 1997. Mrs Stojanovic told her that she could provide food, clothing and accommodation but could not provide Ms Pasagic with financial support. She would use the contacts which she had in the Bosnian community to assist Ms Pasagic to find employment so that she could support herself. Mrs Stojanovic also said that Ms Pasagic would be expected to accept the family lifestyle while she was in their house. The family are vegetarians and practising Seventh Day Adventists. She would be expected to attend church with the family each Sunday.

28. On 15 May, 1997, Mrs Stojanovic spoke with Centrelink and asked that it not pay Ms Pasagic a benefit. Ms Pollard also attempted to arrange a meeting between Mrs Stojanovic and Ms Pasagic in her presence. That meeting did not proceed as Ms Pasagic feared that information would be passed on to her husband through Mrs Stojanovic and through interpreters who were employed to enable her to communicate with Centrelink.

29. Mr Sirucic opposed her application for a protection order and the matter was heard on 22 October, 1997. Mrs Stojanovic gave a written statement to Mr Sirucic stating the circumstances in which she had come to meet him. The application for the protection order was refused by the court.

30. On the basis of the evidence of Ms Pasagic, we are satisfied that, when she met her at the office of Centrelink, she considered that Mrs Stojanovic was unapproachable and "a very sharp person". At the time, she did not understand the conversation but reached her assessment of Mrs Stojanovic on the basis of her behaviour and gestures. She believes that Mr Sirucic and Mrs Stojanovic are friends and that he visits the Stojanovic family and that he can walk into the Stojanovic household at any time he wishes. We accept that her husband told her that Mrs Stojanovic is a very influential person. In writing a letter for Mr Sirucic to use at the hearing of the protection order, Ms Pasagic considered that Mrs Stojanovic supported Mr Sirucic and did not believe her that she was scared of her husband.

31. We are satisfied that Ms Pasagic now understands that Mrs Stojanovic helped her to come to Australia but is not sure how or why she did it. She thinks that Mrs Stojanovic wrote some type of letter. She understands that every payment which she receives from Centrelink places Mrs Stojanovic under an obligation to pay an amount of money to Centrelink.

32. In a minute dated 30 July, 1997 regarding the payment of the special benefit and the subsequent decision to raise a debt against Mrs Stojanovic, an officer of Centrelink noted that:

"Because of DSS policy, we are asked to consider whether Mrs Stojanovic is willing and able to support Ms Pasagic and whether it is reasonable for Ms Pasagic to accept the support that is offered. This is long-standing DSS policy which is taken very seriously before granting special benefit in Assurance of Support cases. However, the real issue is whether special benefit should be paid. While we would like to be able to assist Mrs Stojanovic, a resultant debt to her should not figure in the Agency's decision to grant/not grant the special benefit. The offer of support by Mrs Stojanovic must be considered but only in the context of whether Ms Pasagic is in hardship/unable to earn a sufficient livelihood." (T documents, page 72)

33. Since first being granted a special benefit, Ms Pasagic worked for a period but has since been granted a newstart allowance. She is not now working and has not worked since some time before the birth of her baby to her current partner.

CONSIDERATION

34. The first issue in this case is whether Ms Pasagic was entitled to be paid a special benefit. There has been no issue raised that Ms Pasagic was not qualified for a special benefit within the terms of section 729. What is in issue is whether the special benefit was payable to Ms Pasagic. It is clear from the analysis of the legislative provisions which we have set out above that a special benefit would not be payable to Ms Pasagic during the newly arrived resident's period (i.e. a period of 104 weeks commencing in her case from 7 May, 1997) unless she has suffered a "substantial change in circumstances beyond ...[her] control" within the meaning of sub-section 739A(7).

35. In determining whether Ms Pasagic has suffered such a change of circumstances, we have first had regard to the Guidelines as we are directed to do so by section 739B. In particular, we have had regard to clause 4 and sub-clause 5(3) of those Guidelines. Those guidelines require us to consider whether Mrs Pasagic could obtain financial or in-kind support from any source other than Centrelink and, in particular, from her sponsors, Mr and Mrs Stojanovic. On the basis of the evidence we heard from Mr and Mrs Stojanovic and Ms Pasagic as well as the written material, we have concluded that this is not a case in which Ms Pasagic has been subject to any violence at all from either Mr or Mrs Stojanovic or any member of their family or household. This, therefore, is not a case in which sub-clause 4(3) applies.

36. That, however, is not an end of the matter. Certainly we must, as must the Secretary, act in accordance with the Guidelines. At the same time, we are not limited by those Guidelines for clause 5 cannot, on its face, be interpreted as setting out an exhaustive statement of the situations in which a person can demonstrate that financial or in-kind support cannot be obtained from any source other than Centrelink. In reaching this conclusion we have followed the principles adopted by the Full Court of the Federal Court in Riddell v Secretary, Department of Social Security (114 ALR 340, Neaves, Burchett and O'Loughlin JJ).

37. As we have said, Ms Pasagic was not subject to any violence or any type of abuse from Mrs Stojanovic or any member of her family. We would go further and say that she is not likely to be subject to any violence or any type of abuse from them in the future. On the contrary, Mrs Stojanovic has shown Ms Pasagic generosity in signing an assurance of support for her when she had not previously met her. That generosity has extended to offering to pay her airfare to return to Bosnia should she so wish or to take her into her home while she found employment.

38. Having heard Ms Pasagic and considering it in light of all of the evidence, we are also satisfied that she did not see Mrs Stojanovic's actions as those of a generous person. We accept that she had been told by her husband that Mrs Stojanovic was a person of influence and that she thought that she was indeed influential. In addition, we accept that she thought that Mrs Stojanovic knew her husband well and that she would not be safe in her home as he could walk into it at any time. We also accept her evidence that she was scared of her husband as a result of what she regarded as cruel and abusive treatment of her during her first few days of married life in Australia. We also accept that she firmly believed that her husband could easily kill her if she stayed with Mrs Stojanovic in view of what she believed to be their friendship and his easy access to the home.

39. We do not accept that Ms Pasagic's fears are supported by objective evidence in so far as they concern Mrs Stojanovic and we are not in a position to draw any conclusion as to whether or not they are objectively supported in so far as they relate to Mr Sirucic. At the same time, we are satisfied that her fears were genuinely held even if they were without any objective foundation of which we have been made aware. We accept that she was tired and confused, feared her husband and was unaware of her circumstances and status as a person who had migrated with the assistance of an assurance of support. She believed that Mr Sirucic had spoken of Mrs Stojanovic as a very powerful person in both the Australian Bosnian community and in Australia generally. It was with these things in mind and in a confused and tired state of mind that Mrs Pasagic came to assess the actions of Mrs Stojanovic. Mrs Stojanovic was seen by her as the person who had the "power" to assist in her migration to Australia and she was the person who attended the Centrelink office and later wrote a letter which was used by Mr Sirucic in the court proceedings. She believed that Mrs Stojanovic had such "power" even though objectively Mrs Stojanovic had no power as such and certainly no power greater than that enjoyed by any other Australian citizen to choose to assist another by voluntarily accepting an obligation. In looking at such matters, Ms Pasagic genuinely interpreted Mrs Stojanovic's acts of kindness as actions intended to harm her. In refusing to meet with Mrs Stojanovic, she did not give her a chance to explain her actions. Given her state of mind, however, Ms Pasagic's refusal is understandable even if, from some views, it was not objectively reasonable when all of the facts (and not simply those known to Ms Pasagic) are known. We are satisfied that her state of mind continues to be such that she cannot make any objective assessment of any of Mrs Stojanovic's actions and certainly cannot perceive them as the acts of kindness they were intended to be.

40. We are satisfied that these are circumstances which did not exist at the time when Ms Pasagic migrated to Australia. When she migrated, she did not fear her husband. At that time, she was unaware that Mrs Stojanovic had signed an assurance of support. Although Ms Pasagic's discovery of it after her arrival in Australia may be said not to be a change in her circumstances, what changed in her circumstances was her great fear of Mr Sirucic and of Mrs Stojanovic. Her fear meant that she could not be in Mrs Stojanovic's home and accept her offer to support her in her home. That was a substantial change in Ms Pasagic's circumstances within the meaning of section 739A.

41. It follows that paragraph 732(1)(da) does not prevent a special benefit from being payable to Ms Pasagic. As the special benefit is otherwise payable to Ms Pasagic, it is payable under Part 2.15. It also follows from the operation of regulation 5.9 that Mrs Stojanovic is liable to pay the Commonwealth the amount of the special benefit paid to Ms Pagic.

42. The final issue to consider is whether the debt owed by Mrs Stojanovic should be waived. As we consider that the special benefit was properly paid to Ms Pasagic, we do not consider that the debt arose due to an administrative error of the Secretary's delegates. We have, therefore, considered the power to waive given by section 1237AAD. Considering all of the evidence, we are satisfied that the debt did not arise from any person's making a false statement or a false representation or failing or omitting to comply with a provision of the Act.

43. The next issue to consider is whether there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt. We consider that this is a case in which there are special circumstances to waive part of the debt. Mrs Stojanovic was prepared to support Ms Pasagic in her home and to bear the costs that would entail. It was due to circumstances beyond her control that her offer was refused and it was due to circumstances beyond Ms Pasagic's control that she refused the offer. Mrs Stojanovic was prepared to meet her responsibilities under the assurance of support but was prevented from doing so by circumstances beyond her control.

44. Mrs Stojanovic feels that Centrelink did not assist her to meet her obligations under the assurance of support. Having read the report of the social worker, we are satisfied that Centrelink found itself in a very difficult position. Ms Pasagic refused to meet with Mrs Stojanovic. At the time, and she has continued to do so at this hearing, Mrs Stojanovic queried the genuineness of Ms Pasagic's allegations of abuse by Mr Sirucic and her motives generally. In the circumstances it is difficult to see how Centrelink could have done more than it did. It was a case in which it, as we have done, considered the genuineness of Ms Pasagic's allegations, ascertained Mrs Stojanovic's offer and attempted to arrange for meetings between the two. Centrelink could not, however, make Ms Pasagic's fears disappear so that she would attend those meetings.

45. Taking all of these matters into account, we are satisfied that the circumstances are out of the ordinary and so are special within the meaning of section 1237AAD of the Act. They are not circumstances, however, which justify waiving the whole of the amount paid of special benefit paid to Ms Pasagic. She was prepared to support Ms Pasagic in her home and, as we consider that her offer was reasonable, she should meet the obligation she undertook to the extent to which she was prepared to honour it. She should not be required to pay to the Commonwealth the whole of the amount of the special benefit which was paid to Ms Pasagic simply because circumstances beyond her control (and even the control of Ms Pasagic) meant that it was appropriate that Ms Pasagic not accept her offer. Beyond that amount, the debt should be waived. It is not appropriate, in our view, that the debt merely be written off to that extent so that the possibility remains that it may be recovered at some time in the future. It should be waived so that it may not be recovered at any time.

46. The Authorised Review Officer waived the debt to the extent that it exceeded $80.00 per week. We consider that $60.00 per week is a more reasonable assessment of the costs of feeding and clothing a person who is living with a family. In view of that, we have concluded that the debt should be waived to the extent that it exceeds the amount of any benefit, pension or allowance paid to Ms Pasagic over and above the sum of $60.00 per week.

47. In her letter requesting our reasons, Mrs Stojanovic referred to copies of decisions which had been handed to her by Centrelink and which were cases similar to this case. The only cases to which we understand Mrs Stojanovic was referred were Jovan Stojanovic and Secretary, Department of Social Security (unreported, Decision No.3575, 2 September, 1996, Deputy President Chappell and Mr Way and Ms Bullock, Members) and Secretary, Department of Family and Community Services and El Hawli now known as Hassan (unreported, Decision No.4249, 27 November, 1998, Miss Shanahan).

48. We have read these cases but we do not consider that our conclusions are inconsistent with them. In both of those cases, the Tribunal was satisfied that a person had obtained a benefit or allowance under the Act by means of a false statement or false representation. In Jovan Stojanovic it was a job search allowance and in El Hawli it was a special benefit. In both cases, the Tribunal concluded that its finding in that regard meant that the Secretary did not have any power to waive the debt under section 1237AAD of the Act.

49. While we agree with the conclusion reached by those Tribunals regarding the proper application of section 1237AAD when there has been a false statement or a false representation, we would also observe that our case is different in that we are not satisfied that Ms Pasagic has obtained a special benefit by making any false statement or false representation. The special benefit was properly paid to her. It follows that part of the assurance of support of debt owed by Mrs Stojanovic as a consequence of Ms Pasagic's being paid the special benefit may be waived under section 1237AAD.

I certify that the forty nine preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President), Miss A M Brennan (Member) and Mr I R Way (Member)

Signed: ..................................................

Merissa Martinez Associate

Date/s of Hearing 24 February, 1999

Date of Decision 24 February, 1999

Applicant In person

Advocate for First Respondent Mr P Kanowski

Second Respondent In person