Tan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 20 (14 January 2010)

Last Updated: 14 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 20

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1165

GENERAL ADMINSTRATIVE DIVISION		)
	Re		Kevin Tan

Applicant

And

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

Respondent

DECISION

Tribunal

Dr T M Schafer, Member.

Date 14 January 2010

Place Sydney

Decision

The decision under review is affirmed.

....................SGD.....................
Dr T M Schafer
Member

CATCHWORDS

SOCIAL SECURITY- Assurance of Support- youth allowance- subclass 143 (Contributory Parent- Migrant) visa- Department of Immigration and Citizenship- multiple entitlement exclusion

LEGISLATION

Migration Act 1958 (Cth)

Social Security Act 1991 (Cth)

REASONS FOR DECISION

14 January 2010

Dr T M Schafer

BACKGROUND

1. This is an appeal from a decision of the Social Security Appeals Tribunal (SSAT) dated 6 March 2009 where it was found that an Assurance of Support (AoS) was in force for the Applicant, Mr Kevin Tan. As such, Mr Tan’s claim for youth allowance was denied.
2. Mr Tan is seventeen years of age and was born in Australia in 1992. His birth certificate indicates that both his parents were born in Indonesia. Following his birth, Mr Tan’s mother, Enny Christanty, returned to Indonesia with her son in 1992.
3. In 2002, Mr Tan came to Australia with his mother by way of a subclass 143 (Contributory Parent - Migrant) visa, which was granted pursuant to the Migration Act 1958. The subclass 143 visa carries with it a mandatory requirement of an AoS for a period of ten years, without exception, requiring the assurer to:
   • provide financial support to the applicant (and his/her family) so that there was no reliance on any government forms of support;
   • repay the Australian Government for any recoverable social security payments made by Centrelink to the applicant and any others covered by the AoS; and
   • pay a refundable bond before granting the applicant’s visa.
4. On 24 September 2007, Mr Christopher Kwik lodged an application for AoS for his sister, Ms Christanty, and his nephew, Mr Tan. On the same date, the Department of Immigration and Citizenship (DIAC) informed Ms Christanty that Mr Kwik’s application had been acknowledged and that Centrelink would assess the application for AoS.
5. On 20 October 2007, Centrelink advised Mr Kwik that a $10,000 bond was to be lodged with the Commonwealth Bank of Australia to finalise the application for AoS. On 23 November 2007, Mr Kwik deposited the $10,000 sum at the Fairfield branch of the Commonwealth Bank.
6. On 26 November 2007, Centrelink informed Mr Kwik by way of a written letter that his AoS application for Ms Christanty and Mr Tan had been accepted and that DIAC had been informed of the same. The letter provided information about Mr Kwik’s responsibilities as an assurer to his sister and nephew.
7. On 21 April 2008, DIAC granted subclass 143 visas to both Mr Tan and Ms Christanty. The letter informing Ms Christanty of this approval also outlined the conditions of the visa, and provided information about eligibility for social security payments and the purpose of AoS.

MR TAN’S APPLICATION FOR YOUTH ALLOWANCE

8. On 4 September 2008, Mr Tan lodged a claim for youth allowance as he was a full-time secondary school student at Kingsgrove High School.
9. On 12 September 2009, Ms Christanty, Mr Tan’s nominee, was informed that her son’s claim for youth allowance had been rejected by Centrelink as no evidence had been provided that Mr Tan was not subject to the AoS.
10. This decision to reject Mr Tan’s claim for youth allowance was affirmed by an authorised review officer on 7 January 2009.
11. On 15 January 2009, Mr Kwik confirmed in a telephone conversation with a Centrelink officer that he was still willing to provide support for Ms Christanty and Mr Tan.
12. On 6 March 2009, the SSAT reviewed Centrelink’s decision, and affirmed that there was an AoS in place for Mr Tan and that he was, therefore, not eligible for youth allowance payments.

ISSUES

13. The issues that the Tribunal must determine are whether:
    • (a) there is an AoS in place for Mr Tan; and
    • (b) if so, whether the decision to reject Mr Tan’s claim for youth allowance was correct.

RELEVANT LEGISLATION

14. The legislative definition of an AoS is outlined in section 1061ZZGA of the Social Security Act 1991 (the Act), which relevantly provides:

"assurance of support" means an undertaking by a person under this Chapter that the person will pay the Commonwealth an amount equal to the amount of social security payments that are:

                     (a)  received in respect of a period by another person who:

                              (i)  is identified in the undertaking; and

                             (ii)  becomes the holder under the Migration Act 1958 of a visa granted in connection with the undertaking (whether or not the person continues to hold the visa throughout the period); and

                     (b)  specified in a determination in force under section 1061ZZGH when the payments are received.

Note: An assurance of support may relate to social security payments received by 2 or more persons. See paragraph 23(b) of the Acts Interpretation Act 1901.

15. Sections 1061ZZGB and 1061ZZGC respectively set out who may give an AoS and how such an assurance is given.
16. Subsection 1061ZZGF(1)(a)(i) provides that an accepted AoS, that is an AoS that conforms with determination requirements under section 1061ZZGH, is in force when a person obtains a visa under the Migration Act 1958 which is connected with the assurance.
17. Section 1061ZZGG states that an assurer who has given an AoS is liable to the Commonwealth for any social security payment, as determined pursuant to the provisions of 1061ZZGH, paid to the assuree. The assuree in this case is Mr Tan.
18. Subsection 552(1) of the Act provides that youth allowance is not payable to a person who would otherwise be eligible for it while that person is subject to multiple entitlement exclusion. The operation of subsection 552(2)(c) deems a person who is subject to an AoS as being subject to a multiple entitlement exclusion.

CONSIDERATION

19. The subclass 143 visa, upon which Mr Tan currently resides in Australia, allows the applicant, a parent, to migrate to Australian permanently in order to join their children who are already living in Australia.
20. To apply for a subclass 143 visa, an applicant must be the parent of a child who is a settled Australian citizen, Australian permanent resident or eligible New Zealand citizen.
21. The operation of the visa, however, also allows an applicant’s partner and dependent family members to live as permanent residents in Australia. As such, although Ms Christanty was the primary applicant for the subclass 143 visa, Mr Tan was included in the application as a dependent family member.
22. As part of the conditions for the grant of a subclass 143 visa, holders of the visa must be sponsored by an Australian citizen or permanent resident who is prepared to provide an AoS for a period of ten years.
23. Relevantly, the application for a subclass 143 visa included both Ms Christanty and Mr Tan as migrants who would be covered by Mr Kwik’s AoS. In addition, the statement signed by Mr Kwik as part of his application acknowledged, inter alia, that an AoS for subclass 143 visas applied for ten years from the date of commencement.
24. Mr Kwik’s application for an AoS in respect of Ms Christanty and Mr Tan was accepted on 26 November 2007. Subsequently, on 21 April 2008, Ms Christanty and Mr Tan were both granted subclass 143 visas.
25. The date of commencement of the AoS is deemed to be the later of either the date the assuree arrives in Australia, or the date the visa is granted to the assuree. In the case of Mr Tan, the later date was 27 April 2008, which is the date Mr Tan arrived in Australia.
26. It follows, therefore, that the AoS applies to Mr Tan for a period of ten years from 27 April 2008. With that AoS in place, and taking into account the provisions of subsection 552(1) and 552(2)(c) of the Act, Mr Tan is not entitled to claim youth allowance payments until 28 April 2018.

DECISION

27. The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr T M Schafer, Member.

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

Associate

Date of Hearing 17 September 2009.
Date of Decision 14 January 2010.
Appearance for the Applicant Self-represented.
Appearance for the Respondent Ken Bullock, Centrelink Legal Services.