Gunn and Department of Social Security [1999] AATA 87 (16 February 1999)

Last Updated: 18 February 1999

SOCIAL SECURITY - assurance of support - special circumstances - policy behind requirement for assurance of support - abnormal delay in processing visa application due to delay beyond control of application for visa or departmental officers.

SOCIAL SECURITY - assurance of support - form - whether approved by Minister - whether substantial or strict compliance required.

Administrative Appeals Tribunal Act 1975 - S 37

Migration Act 1958 -S 496

Migration (1993) Regulations - Reg 5, Clause 806.731, Clause 806.722

Social Security Act 1991 - Ss 1227, 1237AAD

Beadle v Director-General of Social Security (1985) 60 ALR 225; (1985) 7 ALD 670

Formosa v Secretary, Department of Social Security (1988) 15 ALD 657; (1988) 81 ALR 687

Mr B v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120

Re Secretary, Department of Social Security and Kratochvil (1995) 37 ALD 515

Wang v Minister for Immigration and Multicultural Affairs (1997) 45 ALD 104

DECISION AND REASONS FOR DECISION [1999] AATA 87

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q98/85

GENERAL ADMINISTRATIVE DIVISION )

Re LINA GUNN

Applicant

And SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

Tribunal Miss S A Forgie (Deputy President)

Date 16 February, 1999

Place Brisbane

Decision The Tribunal:

1. sets aside the decision of the Social Security Appeals Tribunal dated 8 December, 1997; and

2. substitutes a decision that:

(1) the decision of the delegate of the respondent dated 3 July, 1996 to raise and recover an assurance support debt of $15,952.00 as affirmed by an Authorised Review Officer on 13 May, 1997 is varied by waiving that part of the debt that relates to the amounts of special benefit paid to Mrs Besednik during the period 9 May, 1995 to 9 November, 1995; and

(2) the decision is otherwise affirmed.

S A Forgie

Deputy President

REASONS FOR DECISION

On 10 February, 1998, the applicant, Mrs Lina Gunn, applied for review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 8 December, 1997. The SSAT's decision had been to affirm a decision made by a delegate of the respondent, the Secretary of the Department of Social Security ("Secretary"), dated 3 July, 1996 to raise and recover an assurance support debt of $15,952.00. The delegate's decision had been affirmed by an Authorised Review Officer on 13 May, 1997.

2. At the hearing, Mrs Gunn was represented by her husband, Mr Mark Gunn and the Secretary by Mr McQuinlan, who is an Advocate with Centrelink. 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 Gunn. Between August and October, 1998, other documents were submitted and exchanged. The first was a letter from the Department of Immigration and Multicultural Affairs ("DIMA") dated 29 June, 1998. The second bundle was submitted on behalf of the Secretary on 22 October, 1998 ("ST documents"). It contained various documents relating to the approval of the assurance of support form and submissions made on behalf of the Secretary. Mr Gunn requested that he be given until mid December, 1998 in which to respond. That request was granted.

THE ISSUE

3. The principal issue in this case was whether Mrs Gunn has incurred an assurance of support debt and, if so, whether all or part of the debt should be waived or written off.

BACKGROUND

4. There was no disagreement between the parties regarding the facts leading to the Secretary's decision. In view of that and on the basis of the evidence in both the T documents and as given by Mr Gunn, I have made a number of findings of fact. I will set these out in the following paragraphs.

5. Mrs Gunn is the daughter of Mr Slavko Gorupic who is the only child of Mrs Veronika Besednik. Mr Gorupic had migrated to Australia in 1961 after his father had died and his mother had re-married. His formal education had extended to only four years of primary education in Croatia.

6. Mrs Besednik lived in Croatia. Her second husband had died in 1990 and her home was a shed set on approximately an acre and half of land. She tried to eke out a living on that land but with little success. Other people in the neighbourhood stole her chickens and she had two kilometres to walk to obtain water and other necessities. Eventually, she had moved to live with her nephew but she was very unhappy with that arrangement.

7. In 1991 Mr Gorupic travelled to Croatia to visit his mother. Upon his arrival, she told him of her unhappiness and asked him to take her to Australia. Mr Gorupic agreed to do so and set about arranging to sell her property. The proceeds from the sale were not sufficient to cover her airfare but he made up the difference. Mrs Besednik was given a temporary entry permit on 12 July, 1991 and they arrived on 7 August, 1991.

8. She and her son then shared accommodation and lived on the income he received from a Newstart Allowance as a single person. Mrs Besednik contributed by growing vegetables for their consumption.

9. On 28 April, 1992 and before the expiration of the temporary entry visa, Mr Gorupic nominated his mother for the grant of resident status. He did so with the Department of Immigration and Multicultural Affairs ("DIMA") and on the basis that he was an Australian citizen and she was his parent and over 60 years of age. At the same time, an assurance of support was lodged with DIMA. That assurance of support was given by Mrs Gunn and had been signed on 2 April, 1992.

10. On 22 May, 1992, DIMA wrote to Mrs Besednik and asked her to attend a medical and X-ray examination and to provide a penal certificate from Croatia. Mrs Besednik had X-rays on 4 June, 1992 and underwent her medical examination with Dr Hayden on 2 June, 1992. The results of the X-rays and of the medical examination together with the penal certificate were received by DIMA on 12 June, 1992.

11. The results of the X-rays and of the medical examination were forwarded to the Australian Government Health Service ("AGHS") on 1 September, 1992. A Senior Medical Officer at the AGHS was asked whether Mrs Besednik met the prescribed health criteria to enable her to be granted resident status. On 5 October, 1992, the AGHS returned the results to DIMA and asked for further information from Dr Hayden. The AGHS had previously tried to contact Dr Hayden for that information but without success.

12. DIMA wrote to Dr Hayden on 13 November, 1992 asking that he answer certain questions which he had omitted to answer on the original form. No response was received and DIMA followed up its correspondence on 11 February, 1993, 27 April, 1993 and 11 May, 1993. A response was received from Dr Hayden on 3 June, 1993.

13. The first occasion on which an assessing officer in DIMA examined Mrs Besednik's application occurred on 20 September, 1993. By that time, the application for a grant of resident status and the assurance of support were both more than 12 months old. A second assurance of support had been sought from Mrs Gunn.

14. Mrs Gunn signed the second assurance of support before a Justice of the Peace on 25 August, 1993. She did not complete the details on that form but her signature followed a declaration that:

". I understand that where Special Benefits, Job Search or Newstart Allowances are paid to a person covered by this Assurance under the Social Security Act 1991 during the period for which this Assurance of Support is given. I will repay the Commonwealth the funds so paid.

. I understand that the Department of Social Security may use its debt recovery powers under the Social Security Act 1991 or that action may be taken in a court to recover from me such funds as a debt due pursuant to Part VI of the Migration Regulations.

. I understand that the support of a person covered by this Assurance is defined in the Migration Regulations.

. I agree that the period for which this Assurance of Support is given is a period of 2 years commencing from the date of entry to Australia, or grant of a permanent entry permit, of the person(s) covered by this Assurance.

. I consent to the disclosure of the information collected by this form to the Departments of Social Security: Health, Housing and Community Services and the Australian Taxation Office.

. The information I have given in this form is correct and complete. I make this solemn declaration by virtue of the Statutory Declarations Act 1959 and subject to the penalties provided by the Act for the making of false statements in Statutory Declarations, conscientiously believing the statements to be true in every particular." (T documents, page 23)

15. A note in larger type and in block letters appeared at the beginning of the assurance of support form. It advised the person completing the form that he or she was giving an undertaking. If the signatory was not completely sure about what he or she was signing then he or she should get advice from a qualified person such as a lawyer. (T documents, page 22)

16. The form also asked the signatory to attach documents such as his or her most recent taxation assessment, payslips, details of major assets and details of ongoing commitments.

17. By the time that she was asked to sign the second assurance of support, Mrs Gunn's personal situation had changed. Her husband had become unemployed. He had also been injured at work and while playing sport. A claim had been lodged for worker's compensation in relation to his work related injuries. Mr and Mrs Gunn's house had burned down and they were building a new house. At that time, they had also made a decision to move to Queensland and to look for work.

18. DIMA checked the second assurance of support on 12 October, 1993 and Mrs Gunn was asked to pay $3,500.00 into an account with the Commonwealth Bank and to pay a health services charge amounting to $846.00. The former amount was paid on 19 October, 1993 and the latter on 11 November, 1993. Mrs Besednik's application was finalised on 12 November, 1993. She was granted a Class 806 (Family and Other Close Ties (After Entry) Entry Permit ("Class 806 Entry Permit") (T documents, page 30).

19. On 10 December, 1993, Mrs Besednik lodged a claim for a Special Benefit (T documents, pages 31-36), In response to the questions asked on the claim form, Mrs Besednik noted that she had arrived in Australia on 7 August, 1991 and that she had permission to remain permanently in Australia. She also noted that Mr Gorupic had assisted her in completing the claim and asked that he be contacted about the claim.

THE EVIDENCE

20. Mr Gunn said that Mrs Besednik would never have signed the claim form for a Special Benefit had she known that her grand daughter, Mrs Gunn, would have to pay the Department of Social Security ("DSS") any money. It was Mr Gunn's view that an interpreter should have been used by DSS when Mrs Besednik signed the papers and that she should have been told that her grand daughter would have to repay any money paid to her as a Special Benefit. Mrs Besednik does not speak English and her son speaks only broken English. In addition, Mr Gunn belives, DIMA should have advised Mr Gorupic that he could have brought his mother to Australia as a refugee.

21. Mr Gunn said that he and his wife did not have any concerns about signing the form. They were dealing with family members and Mr Gorupic had told them that he would never be a burden on them. He watched while his wife signed the form.

22. DSS, Mr Gunn said, should have advised Mrs Gunn that it was paying a Special Benefit to her grandmother. In an undated note signed by Mrs Gunn, she stated that an officer of the DSS had telephoned her to verify if her personal circumstances had changed since giving the assurance of support. She continued that, had she been advised that her grandmother had lodged a claim, she would have advised her father of the situation and the financial loss would have been avoided. (T documents, page 129) Mrs Gunn was not present at the hearing and so there was no opportunity to clarify matters such as when the DSS officer had telephoned her and how her notifying her father would have altered the situation.

23. Mr Gorupic did not give evidence but an undated letter from him appears in the T documents (pages 114-117). After explaining the very great difficulties he experienced in Croatia and since his arrival in Australia as well as those experienced by his mother, Mr Gorupic turned to their situation since his mother had arrived in Australia:

"When we arrived back to Australia I was broke and I had no money. To apply for mothers (sic) permanent residence

I needed over five thousand dollars, which I didn't have. My mother and I lived on vegetables out of the garden for over three years to save money for mums (sic) permanent residency. From my unemployment benefit it was impossible to support mother and my self, as mother had no income.

I borrowed three thousand dollars for expenses to lodge an application for permanent residency. When I lodged the application I was told by the Immigration Department that if mum recieves (sic) any Social Security help, the insurer will not get $3,500.00 back. That I had to put in as an Assurance of Support.

When I read the information I realised I was not qualified to give an Assurance of Support, so I asked my daughter. She said to me I just had my house burnt down and have lost everything, I cannot take any responsibility on my neck. I said to my daughter how can we let Immigration Department send my mother back. She has no place to go and I said I will take any responsibility. Trusting me my daughter signed the papers.

Shortly after my son in-law had an accident at work, injured his shoulder and arm. He was off work for some time, next he had heart problem and he was in hospital. He was back to work, injuring his legs and through two or three years he had knee reconstructed twice.

Then my mother got sick and had to be taken to hospital and gallstone were removed. The bill came to over $2500. I was paying it back to the hospital slowly, about $20.00 a month. Mother got her permanent residency. When I payed all that money Immigration Department said over $800 was for Medicare. For some reason mum had to see doctor and he sent her for blood test, I payed the bill and Medicare payed (sic) me back less than half.

I was angry, struggling with my unemployment money and doctors and Medicare do things like that to me. I went to see the Social Worker at Social Security. I asked if my mother could get a Health Care card. She told me about the rules. I said why are the rules different for different people, some people can have it some cannot, why? I was a man there are rules, she stopped giving me rules and she listened to what I was saying ..

When she heard my story she said it was impossible what you did for your mother. She said wait and went away. She came back and said 'fill in these forms'. We took those forms and filled it and brought it back as told. The Social Security called my daughter and asked her what is different in her family since she signed the papers and now.

The difference was that her house was burnt down not so long ago and her husband was not working at that time. They did not ask any more, mother received Special Benefit from that time.

First of all I came to Social Security to ask for Health Care Card only, I did hope they would give some more help. But if any body said the money would have to be returned I would not want it, because I knew I would not have the money to return. Well! I hope you see my situation.

I am the only child and my mother has nobody but me. Any others are not close or reliable relatives. We were separated for a long time, now my mother being in her age of 70's I could nod (sic) let her to send back to a country of war, I had to make sure to get her save (sic). I asked my son to sign Assurance of Support but he refused. So in desperation I pressured my daughter to sign the papers.

And now my daughter has so much trouble, house burnt, husband not being able to work full time, having house to pay off mortgage, travelling every day from Bethanga to Wodonga and back and children to care for. Can any body in his or her mind think she should pay that money back. So I agree to pay it back if you think that is fair." (T documents, pages 115-117)

24. Mr Gunn said that he and his wife still own property at Wodonga. That property is worth approximately $100,000.00 and they owe $50,000.00 which is secured by a mortgage over it. The monthly repayments on that amount are $600.00. It was about to be rented and the tenants would pay $600.00 per month as rent. Mr Gunn said that he and his wife also own a house in Cairns. That house is worth approximately $155,000.00 and they owe a total of $154,000.00 on it. The repayments amount to $1,448.00 per month. Mr and Mrs Gunn also repay a personal loan amounting to $8,000.00 at the rate of $100.00 per month.

25. The rates on the house amount to $1,100.00 per year, the registration and third party on two cars amounts to $1,000.00 per year, electricity to $400.00 each three months and child care to $140.00 per week. Mr Gunn could not estimate the amount spent by the family on food.

26. Mr Gunn said that he and his wife have three children aged 10, 6 and 3 years of age. His wife works for a supermarket and earns $357.00 net per week. Mr Gunn has a casual job at a hotel and does casual work as a glazier. He earns a net amount of between $300.00 and $500.00 each week.

LEGISLATIVE FRAMEWORK

27. 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."

28. 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.

29. Paragraph 806.731(1)(c) provides that the Minister may require an assurance of support to be given in relation to the person applying for the visa. If he does so, as his delegate did in this case, an assurance of support must have been given in relation to the person seeking the visa and it must have been accepted by the Minister. The requirement that there be an assurance of support becomes an unconditional requirement prescribed in Schedule 2 for the grant of the entry permit. I also note that Mr Gorupic nominated his mother for an entry permit on the basis of her being an aged parent. Although it is not clear from the papers, that would presumably have brought her within sub-clause 806.722. It is apparent from Note 2 to sub-clause 806.731 that the giving of an assurance of support is mandatory for a Class 805 entry permit in the case of a person coming within sub-clause 806.722.

30. 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."

The bond, in the form of the Bank Guarantee given by the Commonwealth Bank, was given by Mrs Gunn.

31. 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."

32. As Mrs Besednik had been paid a Special Benefit under Part 2.15 of the Social Security Act 1991 ("SS Act"), the effect of this section, if it applies, is that Mrs Gunn is liable to pay to the Commonwealth the amount paid to Mrs Besednik as that Special Benefit.

33. Any amount which Mrs Gunn is liable to pay under the assurance of support 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.

34. 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."

35. 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."

CONSIDERATION

Has Mrs Gunn given an assurance of support?

36. The first issue to consider is the assurance of support itself. As I have said, regulation 5.7 of the Migration (1993) Regulations provides that an assurance of support must be on a form approved by the Minister. Mr McQuinlan was able to obtain a copy of a form which had clearly been approved by a delegate of the Minister on 29 January, 1992 (ST documents, pages 11-15). While that form seeks the same information from the person completing it and asks that the person signing it give the same assurances, it is clearly not the same form as that completed by Mrs Gunn. The form completed by Mrs Gunn is that marked "(11-91)" (ST documents, pages 25-29). That form is not marked in any way. An earlier version of the form marked "(6-91)" shows handwritten amendments (ST documents, pages 21-24). A yet earlier version marked "(9-90)" does not have any amendments but does have what appears to be a signature block (ST documents, pages 17-20). It is largely illegible and its purpose is unclear. What is clear is that the signature block has not been completed.

37. DIMA looked for evidence that the form signed by Mrs Gunn had been approved and its position is reflected in a message written to Mr McQuinlan on 18 September, 1998:

"Basically, the situation is that although we have copies of forms proofs for printing on file dates 11/91, 06/91 and 09/90, they are not the approved versions i.e. they do not contain the stamp with the Minister's delegate's signature on them (I am sending copies of them to you separately by mail).

Before 1992 there was no established procedure on which area of the Department should hold the approved versions of forms. Sometimes they were held in the forms Section (as was the case for the version of 01/92) and sometimes in the policy area which originated them.

I have checked with the appropriate policy area (now Family Section), but they have not been able to locate the approved versions. Unfortunately, the file on which they believe they could have been held has been destroyed in line with normal archival procedures.

Corporate memory within DIMA is that the forms would have been approved by the delegate (the Deputy Secretary). It is a pity we cannot find them and an even greater one that the file on which they may reside has been destroyed. ...." (ST documents, page 16)

38. On the evidence, I am satisfied that the assurance of support form signed by Mrs Gunn is in the same terms as that marked "11-91" but I am not satisfied that it is on a form approved by the Minister either personally or by his delegate. Pursuant to section 496 of the Act, the Minister may delegate his powers to approve the form. I am satisfied that it is substantially in a form approved some months later by the Minister when his delegate approved the form marked "1-92".

39. My finding raises the question whether an assurance of support has been given by Mrs Gunn on behalf of Mrs Besednik. Can an assurance of support be given on a form which has not been approved by the Minister? The requirement of sub-regulation 5.7(1) is that an assurance of support "must be on the form approved by the Minister". The form signed by Mrs Gunn was not a form approved by the Minister. The question then becomes whether completion of a form approved by the Minister is imperative before it can be said that a person has given an assurance of support.

40. The form of paragraph 5.7(1)(a) is mandatory. On its face, strict compliance with it is necessary and it cannot be categorised simply as a procedural or directory requirement with which strict compliance is unnecessary.

41. The difference between mandatory and directory requirements was considered recently by Merkel J in Mr B v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120. He said:

"In Statutory Interpretation in Australia, DC Pearce and RS Geddes, 4th Edition, 1996 at 264 it is suggested that the problem of classifying provisions as mandatory or directory is one of the most intractable problems encountered by the courts in the interpretation of legislation using words such as 'shall', 'must', or 'is required'.

The general principle was stated in Howard v Bodington (1877) 2 PD 203 at 211 by Lord Penzance:

I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.

Strict compliance with a requirement that is imperative or mandatory is a recondition to the action taken. Originally substantial, rather than strict, compliance was considered to be sufficient for a directory or merely procedural provision. However, in more recent cases it has been accepted that non-compliance with a directory provision does not necessarily result in invalidity. Ultimately, the effect of non-compliance with a statutory requirement is not a question of categorisation into the mandatory/directory dichotomy. Rather, it is a question of legislative intent to be discerned in the words of the relevant statutory provision construed in the context of the statute as a whole: see Australian Broadcasting Corp v Redmore Pty Ltd (1989) 166 CLR 454 at 457; 84 ALR 199 per Mason CJ, Deane and Gaudron JJ.

In Victoria v Commonwealth and Connor (1975) 134 CLR 81 at 179; 7 ALR 1 at 59-60 Stephen J explained the underlying principle:

A directory construction will not assist in securing validity unless, despite the non-compliance which is the occasion for involing that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. Sometimes the stipulation which has not been complied with is, in its context, so relatively unimportant to the attainment of that general object that, although there has been total non-compliance, a directory construction may be appropriate. In such cases it may not matter that the non-compliance is complete, not partial. Indeed the stipulation in question may be of a kind which is incapable of partial compliance; to give to such a stipulation a directory interpretation recognises that it may be wholly disregarded without prejudice to validity because of its relative unimportance in the attainment of the general statutory object and also, perhaps, because of the far-reaching and undesirable consequences of treating its non-observance as invalidatory.

Where, on the contrary, a stipulation may be seen to be of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction. A directory construction may none the less be given to such a stipulation if it is of a kind capable of degrees of non-compliance and if some degree of non-compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object. If in such a case a directory construction be adopted, the extent of non-compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute.

At 284-5 Professor Pearce and Mr Geddes explain the present position as follows:

The only guiding principles will be the statute and from it the court will have to glean one of three intentions in regard to the designated procedure: (a) that strict compliance is necessary; (b) that substantial compliance is necessary together with the degree of 'substantiality'; or (c) that compliance is not a precondition to the action taken. Breach of (a) or (b) will result in invalidity but no adverse consequences will flow if (c) is found to apply (unless some separately designated penalty is included in the legislation).

The cases dealing with the mandatory/directory problems generally fall into two broad categories: see Pearce and Geddes at 265. The first relates to cases in which a statute empowers a person or body to carry out a certain act subject to conditions. The second relates to cases where a procedure is specified in a statute for the carrying out of a particular function or for the exercise of a particular power. The ultimate issue in each category is whether, construing the relevant provisions in their context (including their scope and purpose), there is legislative intent that either strict or substantial compliance with the relevant requirement is a precondition to the validity of the action taken: see Pearce and Geddes at 265, Hunter Resources Limited v Melville (1988) 164 CLR 234 at 241, 245, 248-9, 251, 256-7; 77 ALR 8 and Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 at 358-61." (pages 127-128)

42. In summary, then, I must consider not only the literal meaning of the words used in paragraph 5.7(1)(a) but also the policy of the legislation and notions of fairness and ensure that none is frustrated. The policy behind the provisions relating to an assurance of support is clear from the provisions themselves. It is that the Australian community should not be required to provide financial support to certain persons within two years of their either entering Australia or of their being granted the relevant entry permit, whichever is the later date. The 1993 Regulations also make it clear that, in cases in which an assurance of support is either requested or required, an entry permit will not be granted unless an assurance of support has been given. That is to say, it is mandatory that an assurance of support be given in relation to the person before he or she will be granted a Class 806 Entry Permit.

43. If it were to be concluded that it is also mandatory that an assurance of support be given on a form approved by the Minister, it would follow that Mrs Gunn had not given an assurance of support. That would mean Mrs Gunn would not be liable to repay the amount of special benefit paid to Mrs Besednik. It would also follow that an assurance of support had not been properly given in relation to Mrs Besednik's visa and so she would not have satisfied all of the criteria set out in clause 806.731 of Schedule 2 of the 1993 Regulations in respect of the Class 806 Entry Permit. At the same time, however, it would also be the case that Mrs Gunn had done everything that she was asked to do by the Minister and his delegates.

44. Although outside the jurisdiction of the Tribunal to explore, consideration would need to be given to whether the Minister would be estopped from arguing (if he were minded to do so) that the Class 806 Entry Permit had not been validly given. The consideration would focus on the contention that the actions of DIMA's officers alone led to Mrs Besednik's not meeting all of the criteria. In that consideration, regard would need to be had to the judgement of Merkel J in Mr B v Minister for Immigration and Multicultural Affairs in which he found that the erroneous advice of an officer of DIMA did not estop the Minister from relying on non-compliance with a requirement that legislation intends to be satisfied. He referred to his earlier judgement in Wang v Minister for Immigration and Multicultural Affairs (1997) 45 ALD 104 in which he referred also to cases such as Formosa v Secretary, Department of Social Security (1988) 15 ALD 657 (Davies, Burchett and Gummow JJ).

45. I do not, however, think that the consideration would become relevant in any context. It seems to me that the policy of the 1993 Regulations relating to assurance of support and the inter-related provisions of the SS Act require an interpretation of paragraph 5.7(1)(a) that there need only be substantial compliance with the formal requirements of an assurance of support set out in that paragraph. A finding that there needs to be strict compliance with the form (as distinct from the provision of an assurance of support) would frustrate not only the policy behind the provisions but would also be grossly unfair to Mrs Besednik. It would be grossly unfair as she would be found not to have complied with a requirement of clause 806.73 when she, or those assisting her, had done all that was required of them by the officers of DIMA.

46. It also follows from what I have concluded that I am satisfied that there has been substantial compliance with paragraph 5.7(1)(a) of the 1993 Migration Regulations in this case. Mrs Gunn completed the form given to her on two occasions by officers of DIMA and she completed it as directed. This conclusion means that I am satisfied that Mrs Gunn completed an assurance of support. It follows from this that, in accordance with regulation 5.9, Mrs Gunn is liable to pay the amount of special benefit paid to Mrs Besednik as she had given an assurance of support in relation to Mrs Besednik.

Should the debt be waived?

47. I agree with the reasoning applied by Senior Member Beddoe, Members J D Horrigan and T R Gibson in Re Secretary, Department of Social Security and Kratochvil (1995) 37 ALD 515 in finding that the former sub-section 1237(2), which mirrors section 1237A(1), cannot apply in a case such as this. That is so because, quite apart from any consideration of whether or not the Commonwealth has made an administrative error, it cannot be said that the debtor, who is Mrs Gunn, received the payments in good faith. She did not receive the payments that gave rise to the debt as they were received by her grandmother, Mrs Besednik.

48. That brings me to section 1237AAD. The first question is whether the debt arose wholly or partly from either Mrs Gunn's, or another person's, knowingly making a false statement or representation or failing or omitting to comply with a provision of the SS Act. I am satisfied that neither Mrs Gunn nor Mrs Besednik has made any false statement or omission or failed or omitted to comply with a provision of the SS Act. In particular, there is no obligation upon Mrs Besednik to reveal in her claim for a special benefit that an assurance of support has been given in relation to her. There are consequences flowing to Mrs Gunn upon her grandmother's claiming that special benefit, but there was no legal obligation upon Mrs Besednik to tell her grand daughter that she was doing so.

49. That brings me to consider whether there are special circumstances other than financial hardship alone which make it desirable to waive the debt. Whether circumstances amount to special circumstances depends upon the purpose for which the particular power was given. As the Full Court of the Federal Court said in Beadle v Director-General of Social Security (1985) 60 ALR 225 (Bowen CJ, Fisher and Lockhart JJ) is not "... possible to lay down precise limits or precise rules."

50. In this case, I am satisfied that Mrs Gunn understood what she was signing when she signed the assurance of support forms. She understood, I am satisfied, that she would be responsible to repay any payments made to her grandmother should she receive a payment under the SS Act. I am also satisfied that, at the time she signed the second assurance of support on 25 August, 1993, her financial circumstances were not as healthy as they had been earlier when she signed the first assurance of support on 27 April, 1992. I find that she signed the assurance of support on the understanding that her father, Mr Gorupic, would take responsibility for any money she might be required to pay. In the circumstances, this was not an unreasonable understanding for her to have. She was aware that Mr Gorupic had managed to support Mrs Besednik for the previous twenty nine months and she had no reason to think that the situation would change during the two years. Life had been difficult for her father and grandmother but they had shown that they had been able to manage on very little in that time.

51. These matters, however, do not make Mrs Gunn's circumstances special circumstances. Even knowing that she was in more straitened circumstances and presumably knowing the difficult circumstances in which her father and grandmother had lived, she undertook the responsibilities inherent in signing an assurance of support.

52. Those are the particular circumstances of Mrs Gunn but they must also be assessed against the wider circumstances involved in the processing of Mrs Besednik's application for a Class 806 Entry Permit and her living conditions during that process. The wider circumstances include the length of time during which Mrs Besednik was supported by her son, Mr Gorupic before she claimed a special benefit. That time included some nine months before she applied for a Class 806 Entry Permit and then some nineteen months before consideration was completed and the Entry Permit granted. There was a further month before Mrs Besednik claimed the Special Benefit. All in all, Mr Gorupic supported Mrs Besednik for some two years and five months before she claimed a special benefit.

53. While no doubt very difficult, the first nine months cannot be taken into account. It may have been that Mrs Besednik could have been brought to Australia other than on a visitor's visa, the fact remains that she and Mr Gorupic chose not to explore other avenues of entry. The difficulties they faced would be shared by those who took a similar path and do not make the circumstances special. Nor does the fact that Mrs Besednik's application for a Class 806 Entry Permit took some months to process. It is to be expected that this will be the case and that Mrs Besednik, or her family, would have to support herself during that period. The fact that Mrs Gunn was asked for a second assurance of support does not make the circumstances special, for an assurance of support must be current at the time a decision is made to grant a Class 806 Entry Permit and that may be many months after the first assurance of support was given.

54. What does take the circumstances out of the ordinary is the additional delay which occurred in processing the application for the Class 806 Entry Permit. That delay did not occur as a result of actions of officers of DIMA or of Mrs Gunn or Mrs Besednik but as a result of those officers' being unable to obtain the further medical information they required. Had they been able to get that medical information within a reasonable time, Mrs Gunn would have been asked to provide an assurance of support some seven months earlier than she was asked to do so. It is reasonable to assume that the Class 806 Entry Permit would have been granted some six months earlier as a month would have normally been a reasonable time to obtain the medical information.

55. I am satisfied that Mr Gorupic would have continued to support Mrs Besednik on his single pension had it not been for a deterioration in her health. Even then, I am satisfied that he did not seek payment of a pension or benefit but a health care card to assist with medical expenses.

56. It is important that the policy of the assurance of support scheme not be undermined. In the ordinary course of events, those who are granted a Class 806 Entry Permit should not be supported by public funds while they are seeking their visa and for the first two years of their being granted it. The circumstances in this case take it outside the ordinary case and are special circumstances. It is reasonable to expect that Mrs Gunn's obligations under the assurance of support would have commenced some six months earlier had the medical information been supplied at the proper time. Had the assurance of support commenced six months earlier, then six months of the period during which Mrs Besednik was actually supported by Mr Gorupic would have been six months of the period for which Mrs Gunn would have been responsible under the assurance of support. That is to say, rather than Mrs Besednik's being supported from private funds for only one month after she was granted the entry permit and the assurance of support came into effect, she would have been supported for seven months after she had been granted it and before she claimed special benefit. Given the scheme of the legislation and the policy behind an assurance of support, it is unreasonable to expect that Mrs Gunn should bear responsibility under the assurance of support for amounts of special benefit paid during a period of time equivalent to the time during which the granting of the Entry Permit was delayed by circumstances outside her control or that of Mr Gorupic, Mrs Besednik or even that of the officers of DIMA. The particular delay in this case, takes it outside the ordinary range of circumstances applying in cases concerning debts arising under assurances of support and into those which may be described as special.

57. In reaching that conclusion, I note that the special circumstances referred to in section 1237AAD need not refer specifically to the circumstances of the debtor who in this case is Mrs Gunn. Certainly, Mrs Gunn did not support Mrs Besednik during the six month period of delay. Despite that, the delay remains relevant as Mrs Gunn's obligations under the assurance of support only come into being if Mrs Besednik did not receive support from somebody, not necessarily from Mrs Gunn, and if she applied for a pension or benefit under the SS Act.

58. The next question to consider is whether it is more appropriate to waive that part of the debt relating to a six month period rather than to write it off. If the debt is written off, recovery is deferred but payment of the debt may be sought at a later time. If waived, the debt may not be recovered at any time.

59. In the circumstances of this case, I have concluded that it is more appropriate to waive than to write off the amount of the debt relating to the first six months of the payment of special benefit to Mrs Besednik. While I am satisfied that Mrs Gunn's circumstances are such that she would find it difficult to repay the amount of the debt relating to the six month period, I am not satisfied that she would not be able to repay the amount of the debt over a period of time. Despite that, I am satisfied that the circumstances of this case are such that it is more appropriate to waive that part of the debt as it is not consistent with the scheme of the legislation that Mrs Gunn should be responsible under an assurance of support for the six month period I have identified. It follows that I consider that the debt should be waived in so far as it relates to that period.

60. In deciding that the debt for a six month period should be waived, I have decided that it should be the last six months of Mrs Besednik's payments rather than the first. Had the delay not occurred, the assurance of support would have come into effect six months earlier and would not have related to that last six months.

61. For the reasons I have given, I

1. set aside the decision of the Social Security Appeals Tribunal dated 8 December, 1997; and

2. substitute a decision that:

(1) the decision of the delegate of the respondent dated 3 July, 1996 to raise and recover an assurance support debt of $15,952.00 as affirmed by an Authorised Review Officer on 13 May, 1997 is varied by waiving that part of the debt that relates to the amounts of special benefit paid to Mrs Besednik during the period 9 May, 1995 to 9 November, 1995; and

(2) the decision is otherwise affirmed.

I certify that this and the twenty six preceding pages are a true copy of the decision and reasons for decision herein of Miss S A Forgie (Deputy President)

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

Merissa Martinez Associate

Date/s of Hearing 4 June, 1998

Date of Decision 16 February, 1999

Representative for Applicant Mr Mark Gunn

Advocate for Respondent Mr R McQuinlan