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  • Assurances of Support - New Rules


    Some people planning to lodge applications involving an assurer of
    support may be confused by the withdrawal of forms 28 and 28A from the
    DIMIA website. The position is that from 1 July the AoS scheme is being
    administered entirely by Centrelink (see
    www.centrelink.gov.au). Full details of the legislative
    change are here: ]http://www.austlii.edu.au/au/legis/cth/num_act/fa-
    csavala2003baoma2003n1222003920/sch3.html[/url]

    The forms for an AoS
    will now need to be approved and issued by Centrelink, but so far I
    haven't discovered them and they aren't on the DIMIA website. No doubt
    that will be corrected shortly. There is unlikely to be any practical
    difference in processing apart from needing to source the forms from a
    different place, and any unlodged form 28 or 28A is now useless.

    One
    interesting issue is whether the "time of application" criteria for
    sponsored visas involving an AoS can possibly continue to apply to e.g.
    subclass 138 or 139 visas, as it's no longer "the Minister" who can
    accept an AoS - the Social Security Act vests all relevant power in the
    Secretary, Department of Family and Community Services.

    The fullest
    explanation of this change is in the report of the Senate Standing
    Committe for the Scrutiny of Bills which can be found here: ]http:/-
    /www.aph.gov.au/senate/committee/scrutiny/bills03/b12.pdf[/url] and
    contains the following commentary supplied by the Minister for Social
    Security (which mentions a publicity campaign which isn't likely to take
    place before the Federal election as it's not good news :-) ...

    Cheers,


    George Lombard

    www.austimmigration.com.au

    (Committe
    extract follows)


    Amendment to the definition of assurance of support
    debt - Part 2, item 7

    The existing definition of ‘assurance of
    support debt’ creates a debt out of the
    debts/liabilities arising
    as a result of the operation of the past and current Migration
    Regulations relating to assurances of support. From 1 July 2004, this
    definition is amended to include a reference to a liability arising as a
    result of the operation of new section 1061ZZGG that sets out the
    liability of a person giving an assurance
    under new social security
    provisions. The effect of this amendment is that, in
    addition to the
    existing sources of the assurance of support debts, an assurance of
    support debt is also created out of the liability specified in new
    section 1061ZZGG.

    This amendment does not have any effect before 1 July
    2004 and does not affect assurance of support debts arising before 1
    July 2004.

    Amendment to ‘methods of recovery of debt’- Part
    2, item 8

    New social security provisions relating to the giving of
    assurances of support require in certain cases that, for an assurance to
    be accepted, a ‘security’ be given in relation to the
    assurance (item 1, new subsection 1061ZZGD(3) refers). An amendment made
    by item 8 provides that the enforcement of the security is an additional
    method of
    recovery of the assurance of support debt for which the
    security was given. This amendment does not affect recovery of assurance
    of support debts arising before 1 July 2004, that is, debts arising as a
    result of the operation of the current migration
    legislation. The
    migration legislation requires in certain cases that a ‘bond’
    (rather than ‘security’) be given. Under that legislation, the
    bond has to be enforced before the amount of the assurer’s
    liability, and therefore the amount of debt, is established.
    In effect,
    the bond amount reduces the amount of debt.

    Amendment to limit waiver
    in certain circumstances - Part 2, item 14

    Background

    An assurance of
    support is an undertaking, signed by an assurer, that the assurer will
    repay to the Commonwealth the amount of any specified social security
    payments
    made during the period of the operation of the assurance (2 or
    10 years depending on the kind of visa) to the migrant in respect of
    whom the assurance is given. The Assurance of Support Scheme operates to
    protect the Commonwealth’s outlays. An
    assurance is required as a
    condition of grant of a visa in relation to migrants who are likely to
    claim social security payments during the assurance of support period.
    The main reason for requesting the assurance is to ensure that the cost
    of their financial support is not borne by the taxpayer but by the
    assurer. The pivotal element of giving
    of assurance is the signing by an
    assurer of an undertaking to repay the value of the migrant’s
    income support. To further guarantee the funds being available to repay
    the social security payments, the lodgement of a ‘bond’ or a
    ‘security’ is required in some cases.

    Waiver under
    ‘special circumstances’ provision when an assurer is unaware
    of theassurer’s obligations

    It is not uncommon for assurers, once
    a decision to recover their assurance of
    support debts is made, to claim
    that they were unaware that they had to repay social security payments
    of the migrant for whom they gave an assurance. While there have been no
    waiver decisions on the sole ground that the assurer was unaware of
    his/her repayment obligations, claims of that nature might have
    contributed to the decision to waive some assurance of support debts.


    New subsection 1237AAE(2) prevents waiver in special circumstances
    under section 1237AAD if the only ‘special circumstance’ is
    that the assurer was unaware of his/her repayment obligations. This
    amendment is intended to counteract assurers’
    tendency to claim
    lack of knowledge concerning their obligations, to send a clear message
    to the assurers that it is not appropriate to make such claims when they
    signed an undertaking relating to that obligation and, generally, to
    reinforce the message of the obligation connected with the assurance.
    (It is intended that the
    publicity campaign relating to the
    implementation of the assurance of support measure will draw on that
    amendment.) The amendment is, essentially, one for avoidance of doubt
    rather than to change any current interpretation of the provision

    relating to waiver in special circumstances. The amendment is unlikely
    to affect any assurance of support debt arising before 1 July 2004 as
    these debts are not being waived on the sole ground of the assurer being
    unaware of his or her obligation (also, it is not expected that it will
    affect the debts arising after 1 July 2004).


    --
    www.austimmigration.com.au


    Posted via http://britishexpats.com

  • #2
    Assurances of Support - New Rules


    George
    My understanding is that the requirement for an AOS at time of
    application for skilled sponsored visas was going to be dropped, but
    I've been scouring the legislation to find the change to implement this.
    So far, unsuccessfully.

    I'm sure we'll have a clarification on this
    soon.

    The other change that's apparently in the pipeline is that
    Centrelink will take over the lodgement of bonds from the Commonwealth
    Bank, although this is not going to happen immediately.

    There's bound
    to be confusion in the transition period as Centrelink picks up this new
    process (for them).

    Jeremy


    Originally posted by George
    Lombard
    One interesting issue is whether the "time of
    application" criteria for sponsored visas involving an AoS can possibly
    continue to apply to e.g. subclass 138 or 139 visas, as it's no longer
    "the Minister" who can accept an AoS - the Social Security Act vests all
    relevant power in the Secretary, Department of Family and Community
    Services.
    --
    This is not intended to be legal or professional advice in any jurisdiction


    Posted via http://britishexpats.com

    Comment


    • #3
      Assurances of Support - New Rules


      Originally posted by JAJ
      George My understanding is
      that the requirement for an AOS at time of application for skilled
      sponsored visas was going to be dropped, but I've been scouring the
      legislation to find the change to implement this. So far,
      unsuccessfully.
      I'm sure we'll have a clarification on this soon.
      Jeremy
      Hi Jeremy,

      In fact, if you read my post,
      the requirement for AoS at time of application is still there. But the
      most troubling issue is the lack of forms for sponsored applicants.
      It's quite clear that a form 28 or 28A no longer has any significance.
      If there were forms available on the DIMIA site then the change would
      just be procedural.

      Cheers,

      George Lombard


      www.austimmigration.com.au


      --
      www.austimmigration.com.au


      Posted via http://britishexpats.com

      Comment

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