8.3.3.20 Departure authorisation certificates (DAC)

Context

A person subject to a DPO (1.1.D.50) (8.3.3.10) can apply for a DAC (1.1.D.30) which allows the person to depart Australia for a specified period.

On this page

• When the Registrar must issue a DAC
• DAC where the person is likely to depart and return, revocation likely, and security not necessary
• DAC where revocation likely and security provided
• An appropriate period
• DAC issued on humanitarian grounds or in Australia’s interests
• Date of issue of a DAC
• Notification requirements relating to DACs

When the Registrar must issue a DAC

The Registrar must issue a DAC in situations where:

• the person is likely to depart and return to Australia within a specified period, it is likely that the Registrar will be required to revoke the DPO within a period the Registrar considers appropriate, and security for the debtor's return to Australia is not necessary
• it is likely that the Registrar will be required to revoke the DPO within a period the Registrar considers appropriate, and the person has provided appropriate security for their return to Australia by a specified date, or
• the Registrar is satisfied a DAC should be issued on humanitarian grounds or that refusing to issue a DAC will be detrimental to Australia's interests.

There is no discretion to issue a DAC in other situations.

Where a DAC has been issued, a copy of that certificate must be provided for inspection, if requested by an authorised officer, when departing Australia.

DAC where the person is likely to depart & return, revocation likely, & security not necessary

The Registrar is required to issue a DAC when satisfied that:

• if the DAC is issued, it is likely that the person will depart from Australia and return within an appropriate period
• if the DAC is issued, it is likely that the Registrar will be required to revoke the DPO, and
• it is not necessary for the person to give security for their return to Australia.

DAC where revocation likely & security provided

If the Registrar is not satisfied that the 3 requirements above have been met, a DAC may still be issued if the Registrar would likely be required to revoke the DPO within a period that the Registrar considers appropriate, and the person has given appropriate security for their return to Australia.

An appropriate period

The factors the Registrar must consider in determining what an appropriate period is include:

• the amount of the debt
• the person’s capacity to pay the debt (including the rate of repayment over time)
• any administrative or judicial decisions that may affect the amount of the debt, and
• any other factors the Registrar considers appropriate.

Security can be given by a bond or a deposit or by other means. If the person does not return by the agreed date, the security will be forfeited to the Commonwealth of Australia. It cannot be applied against the outstanding debt.

The Registrar will only accept a security that:

• is in a form that is readily convertible to cash, for example, bank cheque
• is offered by the debtor rather than third parties on the debtor's behalf
• is generally not significantly less in value than the amount of the debt owing.

Note: Security arising from a loan obtained from a financial institution or a third party is not considered to be a payment from a third party.

Note: A charge over real estate would not generally be considered to be an appropriate form of security.

The Registrar is not required to issue a DAC even if security is offered if the Registrar is not satisfied that the person has made satisfactory arrangements to wholly discharge the debt (and the debt is not completely irrecoverable).

If a person is able to give appropriate security, the use of those funds to reduce the debt is preferred to their use as a security. Wholly discharging the debt or making a satisfactory arrangement to discharge the debt and meet any ongoing child support (1.1.C.60) liability will generally require the Registrar to revoke the DPO.

Where the debt is in dispute and a person is taking steps to resolve this dispute, offering security could be an appropriate alternative. The Registrar may change the day specified in the DAC to a later day where the DAC has been issued with security for a person's return to Australia.

The date of return for a DAC may be extended upon application or initiated by the Registrar. The application can be made verbally or in writing.

An application to substitute a later date may be successful on the same security if the Registrar is satisfied with the current level of security.

The Registrar may refuse an application to substitute a later date for the person's return if:

• the person refuses to increase the value of security already given
• the person refuses to give such further security as the Registrar considers appropriate, or
• the Registrar considers that it would not be appropriate to substitute a later day for the person's return to Australia.

DAC issued on humanitarian grounds or in Australia's interests

The Registrar must issue a DAC where satisfied that:

• the certificate should be issued on humanitarian grounds, or
• refusing to issue the certificate would be detrimental to Australia's interests,

AND

• the debtor is unable to provide security for their return to Australia.

In considering the meaning of 'unable' in this context, the Registrar must be satisfied that the debtor could not, in the existing circumstances, provide appropriate security. It is not sufficient that the debtor is merely unwilling to provide security or unable to satisfy the Registrar as to the appropriateness of the security offered (Lui and Commissioner of Taxation (2009) AATA 626 at paragraph 21). The onus is on the debtor to establish the inability to provide appropriate security.

Humanitarian grounds include compassionate grounds.

Where a DAC is sought on humanitarian grounds, the debtor must supply evidence to support:

• the contention they are unable to give security to the satisfaction of the Registrar, and
• the humanitarian grounds relied upon in the application for the DAC.

Claims that a DAC should be issued on humanitarian grounds will be dealt with on their merits. The onus is on the debtor to satisfy the Registrar of the circumstances relevant to the application.

Where a DAC is sought on the basis that a refusal to issue the DAC would be detrimental to the interests of Australia, the debtor must supply evidence to support:

• the contention they are unable to give security to the satisfaction of the Registrar, and
• the reasons why a refusal to issue a DAC would be detrimental to the interests of Australia.

Claims that refusing to issue a certificate would be detrimental to Australia's interests will be dealt with on their merits. The onus is on the debtor to satisfy the Registrar that refusing to grant a DAC would be detrimental to the national interest.

Date of issue of a DAC

A DAC authorises the departure of a debtor on or before the 7th day after a date specified on the certificate. The date specified on the certificate must be a day after the date the certificate is issued and cannot be more than 7 days after the day the certificate is issued.

This means that a DAC can authorise the departure of a debtor no earlier than the day after the certificate is issued, and no later than 14 days after the certificate is issued.

The Registrar will usually specify the date on the DAC as the date the debtor nominates as the intended day of departure. This allows the DAC to be issued up to 7 days prior to the specified date, and authorises the debtor to depart during a period from the date specified up to 7 days after the date specified in the certificate. The Registrar will specify a date other than the intended day of departure - within the period outlined above - where it is appropriate to do so.

Notification requirements relating to DACs

Where the Registrar issues a DAC in respect of a person, the Registrar must notify:

• the person to whom the DAC applies
• any other person to whom a copy of the DPO was provided.

Where the Registrar makes a decision to substitute a later day with respect to a DAC the Registrar must notify:

• the person to whom the DAC applies
• any other person to whom a copy of the DPO was provided.

If the Registrar refuses to issue a DAC or refuses to substitute a later day with respect to a DAC, the Registrar must notify the applicant.