9.4.6 AoS periods, cancellations & transfers

Introduction

This section contains information on the duration of an AoS and the circumstances under which an AoS may be cancelled or transferred.

Duration of the AoS Period

The duration of the AoS depends on the visa subclass and are specified in the Social Security (Assurances of Support) Determination 2018.

Note: Prior 1 January 2012, a discretionary AoS requirement applied to temporary visa subclasses 309 and 820, temporary visa subclass 300 (prospective marriage), and the permanent visa subclasses 100 and 801. The AoS period for these visas was 2 years. The discretionary AoS requirement for these visas was removed from the Migration Regulations from 1 January 2012.

This discretionary AoS requirement also previously applied to Interdependency visas (subclasses 310, 110, 826, and 814), which were repealed from July 2009, although existing applicants could still be granted after this time. Interdependency visa applications granted on or after 1 January 2012 were not subject to an AoS as a matter of policy as the discretionary AoS requirement could not be retrospectively removed from the Migration Regulations for repealed visas.

Any AoS accepted for a Spouse/Partner category visa that was granted on or before 31 December 2011 remains in place.

When an AoS is in force

The AoS comes into force for a person (that is, the AoS period starts) on the day the person is granted the relevant visa, or on the day they enter Australia as the holder of the relevant visa, whichever occurs later.

An AoS that has come into force in respect of a person remains in force until the end of the applicable AoS period in spite of any change of circumstances on the part of the person or their assurer.

If a person is granted a visa which has an AoS requirement but is subsequently granted another visa with no AoS requirement, the AoS does not cease simply because the person is granted a new visa which does not have an AoS requirement. This would include a situation where a person changes from one visa type to another or ceases to hold the visa when they obtain citizenship.

There are, however, some specific situations where an AoS can be cancelled. If the AoS is cancelled, the AoS ceases to be in force.

Cancellation of an AoS

Financial hardship on the part of the assuree/s or assurer/s is not grounds for cancellation of an AoS.

Once an AoS comes into force, it may be cancelled only in the following situations as specified in the Social Security (Assurances of Support) Determination:

• after arrival in Australia, the assuree is granted refugee status by the Department of Home Affairs (note, this does not apply to CSP entrants)
• cancellation of the visa of the person identified in the AoS as the assuree
• there is only one assuree and the assuree dies
• there is only one assurer and the assurer dies
• a corporation acting as assurer has been deregistered and is no longer operating
• special circumstances such as
  • where an accident, disability, illness or other circumstance to the assurer has critically affected the assurer's ability to provide adequate support, or
  • the assuree is unable to travel to Australia before the expiration of the visa that is subject to the AoS.

Where the assuree is unable to travel to Australia due to a deteriorating serious medical condition, such as a terminal illness, this should be supported by a medical certificate issued by a registered medical practitioner and other supporting medical evidence and the decision maker should be satisfied that the assuree's condition will not improve but is likely to deteriorate.

Where a corporation is deregistered, for example due to insolvency, there is no longer a legal entity to act as the assurer or to repay any debts incurred and the AoS can be cancelled. However, there are some circumstances where it may be appropriate to retain the AoS, despite the corporation’s deregistration.

• The AoS should not be immediately cancelled if a security was provided as part of the AoS. This is because the security provides a mechanism for recovering any debts that have been or may be incurred. If the assuree receives a recoverable social security payment (either before or after the corporation’s deregistration), this is a debt owed to the Commonwealth and should be recovered from the security provided. In this event, the AoS can be cancelled once the security has been exhausted.
• If a corporation has been deregistered for administrative or other reasons, and it seems probable that the corporation may be re-registered again in the future (for example, a director, secretary, or member of the corporation has applied or intends to apply for re registration), the AoS should not be cancelled, regardless of whether a security was provided. This means the AoS will still be in place should the corporation be re-registered. If the assuree receives a recoverable social security payment (either before or after the corporation’s re-registration), the debt is then able to be recovered.

In the event of the death of an assuree, the AoS should not be cancelled if the assuree had received a recoverable social security payment prior to their death, as this is a debt owed to the Commonwealth and should be recovered from the assurer. The debt should be deducted from the security if one was provided before the AoS is cancelled.

Where an assurer dies, the AoS should not be cancelled if there has been a recoverable social security payment paid to the assuree as this is a debt that has accrued and is recoverable from the estate of the assurer. As such, the executor of the estate of the deceased assurer should be informed.

Transfer of an AoS

Under the provisions of SSAct section 1061ZZGF(2), the Secretary (or their delegate) may determine an AoS that has come into force in respect of an assuree should cease if another AoS comes into force in respect of the same assuree. This may occur in situations where there is a special circumstance and it would be a beneficial outcome for all parties for a new AoS to be obtained to replace the existing AoS, thereby effectively transferring the responsibilities of one assurer to another assurer.

The prospective new assurer must satisfy the requirements specified in the Social Security (Assurances of Support) Determination. In the case of a joint AoS, if an application to transfer is made by one of the assurers, the remaining assurer/s and the prospective replacement assurer must all satisfy the requirements for a joint AoS. If both do not meet the requirements, the request to transfer will be declined.

Should the transfer be approved and a new AoS come into force in respect of an assuree, the original AoS is cancelled. The new AoS will commence from the same date as the original AoS and be in force for the remaining period of the relevant AoS.

If the new AoS is a mandatory AoS which requires a security, the new assurer must obtain a bank guarantee from the CBA to cover the relevant amount of the security. The CBA will require a term deposit to the value of the required security to issue a bank guarantee. Evidence of the new bank guarantee and term deposit must be provided by the new assurer to Services Australia before instructions are given to CBA to release the previous bank guarantee. The new assurer's name must appear on the term deposit. If it is a joint assurance, at least one of the assurer's names must appear on the term deposit.

Services Australia may authorise the CBA to release the previous term deposit amount in full to the person or body who obtained the previous term deposit and bank guarantee if the assuree has not received a recoverable social security payment during the AoS period.

Any interest that is accrued on the previous term deposit is not considered as part of the security, and is payable to the previous assurer by the CBA regardless of what happens to the capital amount.

The Secretary (or their delegate) may decline a request for a transfer made by an assurer if there is a debt owing to the Commonwealth under the relevant AoS or if the assuree under the AoS is in receipt of an income support payment.

Note: The Secretary (or their delegate) can only make decisions regarding the transfer of an AoS within the rules set in social security law. The Secretary (or their delegate) cannot be compelled to transfer an AoS from one party to another if this would require the Secretary (or their delegate) to make a decision that is outside the bounds of their powers.

That is, the Secretary (or their delegate) can only determine that an AoS be transferred from one party to another if the second party makes an application to provide a new AoS and meets the eligibility requirements for that AoS to be accepted.