Alini and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 599

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 599

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4116

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		OLIVER SIMON ALINI

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:      GD Friedman, Senior Member

Date:             10 July 2008

Place:           Melbourne

Decision:The Tribunal affirms the decision under review.

Graham Friedman
  Senior Member

SOCIAL SECURITY - entitlement to Austudy ‑ whether applicant satisfies progress rules- whether reasons for discontinuance or failure due to illness or other reasons beyond applicant’s control  

Social Security Act 1991 ss 568, 569(1), 569H(3), (7)

REASONS FOR DECISION

10 July 2008  GD Friedman, Senior Member

1.      Oliver Alini applied to Centrelink for Austudy on 14 March 2007 in relation to a Bachelor of Science course at the University of Melbourne for the 2007 academic year.  Centrelink is the service delivery agency for the Department of Education, Employment and Workplace Relations.  Centrelink rejected his claim on the basis that he did not satisfy the progress rules in that he exceeded the allowable study time to complete his course and that his previous courses should not be disregarded. 

ISSUES

2.        The issues before the Tribunal are:

·     Did Mr Alini exceed the allowable number of years of previous study at the same level as his present course?

·     Did Mr Alini fail a year or part of a year, or discontinue a course of study, due to illness or other circumstances beyond his control?

Did Mr Alini Exceed the Allowable Number of Years of Previous Study at the Same Level as his Present Course?

3. Section 568 of the Social Security Act 1991 (the Act) provides that a person is qualified for Austudy if the person satisfies the activity test, is of Austudy age and is an Australian resident. Section 569(1) of the Act provides that a person satisfies the activity test if undertaking qualifying study. This requires a person to satisfy the progress rules which are set out in s 569H of the Act.  In particular, a person satisfies the progress rules if the time already spent by the student on the course, or on one or more other courses at the same level, does not exceed the allowable study time for that course.  Allowable study time is defined in s 569H(3) of the Act:

Allowable study time - full-time students and 66% concessional study-load students

(3)       The allowable study time for a course undertaken by a full-time student or a 66% concessional study-load student is:

(a)if the minimum amount of time needed to complete the course as a full-time student is one year or less - that minimum amount of time; or

(b)if the minimum amount of time needed to complete the course as a full-time student is more than 1 year and:

(i)the student is enrolled, or intends to enrol, in a year-long subject; or

(ii)the student’s further progress in the course depends on passing a whole year’s work in the course;

the minimum amount of time plus 1 year; or

(c)in any other case—the minimum amount of time needed to complete the course as a full-time student plus half an academic year.

4.        Mr Alini told the Tribunal that he has been enrolled in the following courses:

·Bachelor of Arts (University of Tasmania): semester 2, 1998 (full-time); semester 1, 1999 (part-time: 0.25 study load);

·Bachelor of Arts (University of Queensland): semester 2, 1999 (full-time);

·Bachelor of Naturopathy (Southern Cross University): semester 1, 2002 to semester 2, 2003 (full-time); and

·Bachelor of Science (University of Melbourne): semester 1, 2006 (part-time), semester 2, 2006 (part-time: 0.5 study load); semester 1, 2007 (full-time).

5. The Tribunal finds that the minimum time to complete the science degree as a full-time student at the University of Melbourne is three years. Therefore, the operation of s 569H(3) of the Act means that Mr Alini has three and a half years to complete a bachelor degree (three years plus one year if he is enrolled in any full‑time subjects or three years plus half an academic year if not). There was no dispute that because of the time spent by Mr Alini on previous tertiary courses, he exceeded the allowable study time prior to his claim for Austudy.

Did Mr Alini Fail a Year or Part of a Year, or Discontinue a Course of Study due to Illness or Other Circumstances Beyond his Control?

6.        Section 569H(7)(b) and (c) of the Act provides: 

Matters to be disregarded in determining whether someone has exceeded the allowable study time

(7)       In determining whether a person has exceeded the allowable study time (for a full-time student or a concessional study-load student), disregard the following:

…

(b)a failed year of study, or a failed part of a year of study, if the failure is because of:

(i)        the person’s illness; or

(ii)        other circumstances beyond the person’s control;

(c)time spent undertaking a course that has been permanently discontinued because of:

(i)        the person’s illness; or

(ii)        other circumstances beyond the person’s control;

…

7.        Mr Alini said that his previous courses should be disregarded.  He told the Tribunal that he grew up in Queensland and after completing secondary education he was accepted into a course to become an airline pilot, but failed the medical examination.  Against his parents’ wishes he enrolled in a Bachelor of Arts course at the University of Tasmania because he was interested in Tibetan Buddhism, which was offered only at that university.  He said that the move to Tasmania was not a success.  His rental accommodation, some 80 kilometres from Hobart, was unsatisfactory as it had no heating, hot water or telephone.  He found the cold climate difficult to endure.  Although there was a bus to and from Hobart, he preferred to hitchhike to save money, but soon experienced financial problems.  He said that he felt isolated and did not participate in student life at the university.  Under cross-examination he agreed that he was able to pay his bills, perform basic household tasks and find casual work picking fruit during the summer holidays.  He also agreed that he maintained contact with his parents, but did not seek help from the university or consider alternative accommodation.  He could provide no explanation for this failure.

8.        Mr Alini said that initially he attended classes but he became lonely and his attendance deteriorated.  His academic performance suffered.  He stated that he had no computer access but was unable to explain why he did not make use of the resources at the University library, or submit his assignments in longhand.  He was not enjoying the study of philosophy or ancient civilisations and he failed both subjects in 1998.  He said that he changed to part-time study in 1999 and studied only Latin.  However, he failed to attend the examination because he had decided to hitchhike and no-one stopped for him.  He agreed that the thought of working part‑time in 1999 had not occurred to him at the time.  He agreed that he was disillusioned with the course of study and said that he had an emotional breakdown.  His parents demanded his return to Brisbane, where he enrolled in an Arts degree at the University of Queensland in the second semester of 1999.

9.        In relation to his studies at the University of Queensland, Mr Alini stated that he studied Introduction to Latin Language B, Introduction to Australian Literature and Turning Points in World History.  However, as a result of family conflict he moved out of home and stopped attending classes in mid-semester.  He failed all his subjects because he did not submit any assessable work.  Under cross-examination Mr Alini agreed that he became disillusioned with the course and with tertiary study in general and that he did not seek assistance from student services at the university.  He said that the combination of financial and family difficulties, plus a sense of defeat after his unhappy experience in Tasmania, led to a flare-up in his emotional problems.  He now believes that at the time he experienced a range of symptoms associated with bipolar affective disorder, anxiety and depression.

10.      Mr Alini stated that between 1999 and 2002 he worked in a variety of positions such as a bricklayer and a fruit picker and completed a Certificate 3 in horticulture in 2001 at Riverina TAFE College in Wagga Wagga, New South Wales.  In 2002 he commenced the Bachelor of Naturopathy course at Southern Cross University in Lismore, New South Wales, as a full-time student with a view to a career in health sciences.  In 2002 he passed seven out of eight subjects and achieved excellent results including two high distinctions.  In 2003 he again performed well, completing all seven subjects.  He said that he enjoyed his studies and his mood lifted.  He made friends.

11.      However, during this time he suffered recurrences of tonsillitis and was encouraged to treat himself with alternative medicines.  He said that this was unsuccessful and when he decided to accept conventional treatment such as penicillin and the removal of his tonsils, staff and other naturopathy students were unhappy with his decision not to rely on remedies that had been offered during the course.  His relationship with his girlfriend ended in 2003, contributing further to his low self-esteem and feelings of anxiety and distress.  For these reasons and due to a general disillusionment with the course, he made a rational decision to discontinue his studies.  He agreed that in March 2004 he told Centrelink that he had deferred his course in order to return to work and not because of any medical condition.  He said this was because he did not wish to discuss his health status with Centrelink officers at the time.

12.      Mr Alini said that he then worked for a period as a furniture removalist.  He had a tonsillectomy in October 2004, after which he re-located to Melbourne with the removal company before a motorcycle accident ended that employment and he found work as a delivery driver.  He emphasised that at this time he fell into the habit of depressive solitary behaviour and his general practitioner recommended psychiatric treatment.  He was referred to Dr C Wijesinghe, consultant psychiatrist, in January 2006, who prescribed anti-depressants.  He also commenced counselling, which he said has been beneficial.  As a result, he felt motivated and well enough to enrol in the Bachelor of Science course at the University of Melbourne in the first semester of 2006.  He passed all four subjects, obtaining three second-class honours.  He performed well in the second semester of 2006 and in 2007.  At this time he also worked part-time as a gardener at the university and received counselling at the student counselling service.  He stated that he enjoyed university life and participated in social functions.

13.      Despite his success at the University of Melbourne, Mr Alini stated that he could no longer afford to live in Melbourne, so earlier this year he moved back to Queensland and is living with his parents.  He has transferred to the University of Queensland and expects to complete his science degree in 2009, after which he intends to pursue a career in teaching or research.

14.      Dr Wijesinghe told the Tribunal that in January 2006 Mr Alini had reported that since 1998 he had experienced episodes of depression, lasting between one week and three months, because of stress caused by relationship difficulties and an inability to develop a career that suited his beliefs and lifestyle.  Dr Wijesinghe diagnosed recurrent reactive depression.  He reported that after the consultation on 26 November 2007 there was a significant improvement in Mr Alini’s condition as a result of medication, cognitive psychotherapy and group therapy.  He stated that when suffering from an undisclosed or untreated psychiatric disorder a person’s capacity to make career and study choices could be impaired; and when depressed a person may abruptly terminate his or her course of study.  He concluded, from the history Mr Alini had provided, that it was likely that Mr Alini was depressed during the relevant periods due to external stressors such as disillusionment with his studies acting on a vulnerable personality.

15.      Under cross-examination Dr Wijesinghe agreed that in January 2006 Mr Alini was not clinically depressed.  He agreed that he had not examined Mr Alini between 1998 and 2003, so could not be precise about any conditions from which Mr Alini was suffering in that period.  He acknowledged that a person suffering from depression may be able to function reasonably on a daily basis and make rational decisions, depending on the severity of the condition.  As a result, he was unable to determine whether Mr Alini failed or discontinued several university courses because of depression. 

16.      In a written statement dated 22 August 2007 Ms S Alini, Mr Alini’s mother, said that Mr Alini suffered from tonsillitis from his early childhood and the condition became severe between 2000 and 2004, after which his tonsils were removed.  Ms Alini said that when the condition was severe Mr Alini found difficulty in concentrating, he became moody to the point of being depressed and his enlarged and inflamed tonsils caused sleep apnoea, which made him feel tired, unwell and listless.

17.      The Tribunal accepts that Mr Alini is an intelligent student and that, after completing secondary school, he searched for a course of study that would lead to a satisfying career.  His initial career choice of airline pilot was thwarted because of medical factors.  His decision to study Buddhism at the University of Tasmania was unsuccessful.  The Tribunal accepts Mr Alini’s evidence that he was living away from home without support and his accommodation and financial resources were inadequate.  He was young and somewhat naïve.  However, by his own evidence, he was able to make decisions about his living arrangements and his participation in university life.  He could have sought assistance from the university or from other agencies.  Although Mr Alini suffered some emotional difficulties he did not enjoy the course; and there is no persuasive evidence that his tonsillitis was having a major impact on his studies or that he was suffering from any other illness.  Dr Wijesinghe’s evidence that Mr Alini may have been suffering from depression at that time, is not supported by objective or contemporaneous evidence.  There is no material before the Tribunal to suggest that Mr Alini’s academic performance was affected by any psychological illness.

18.      In all the circumstances, the Tribunal finds that Mr Alini’s failure in his studies in 1998 and 1999 was not due to his illness or to other circumstances beyond his control.  Therefore, in relation to the University of Tasmania, Mr Alini does not satisfy s 569H(7)(b) of the Act.

19.      In respect of the studies at the University of Queensland in the second semester of 1999, the Tribunal accepts that Mr Alini’s accommodation arrangements were unsatisfactory, but he had the ability to make decisions about these and other matters affecting his studies.  The Tribunal accepts his evidence that he was disillusioned with tertiary study and he did not enjoy his chosen subjects.  For these reasons he ceased attending classes during the semester and did comply with course requirements.  As with his attendance at the University of Tasmania, the Tribunal finds that neither tonsillitis nor any psychological or psychiatric condition caused him to fail the course.  In all the circumstances, the Tribunal finds that Mr Alini’s failure in his studies in 1999 was not due to his illness or to other circumstances beyond his control.  Therefore, in relation to the University of Queensland Mr Alini does not satisfy s 569H(7)(b) of the Act.

20.      In respect of the studies at Southern Cross University in 2002 and 2003 the Tribunal recognises that Mr Alini’s situation had improved and his academic performance was excellent, despite several bouts of tonsillitis during this period.  However, the Tribunal accepts his evidence that his unsuccessful attempts to treat his tonsillitis with alternative remedies led to a loss of faith in naturopathy as a profession, and that he made a rational and considered decision to cease his studies after two years.  Although his academic disillusionment and the end of a relationship might have caused some anxiety and distress at the time, the Tribunal does not accept that the decision was based on medical reasons or on any other factor over which he had no control.  In all the circumstances, the Tribunal finds that the time spent by Mr Alini undertaking the course in 2002 and 2003 was not permanently discontinued because of his illness or other circumstances beyond his control.  Therefore, in relation to the Southern Cross University Mr Alini does not satisfy s 569H (7)(c) of the Act.

CONCLUSION

21.      In view of the Tribunal’s findings in relation to s 569H(7)(b) and (c) of the Act, the failed year, or part of a year of study and the time spent undertaking a course that has been permanently discontinued, cannot be disregarded for the purposes of determining whether Mr Alini has exceeded the allowable study time.  Therefore, Mr Alini has exceeded the allowable study time and his claim for Austudy does not succeed.

DECISION

22.      The Tribunal affirms the decision under review.

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision of:

GD Friedman, Senior Member

(sgd)      Olympia Sarrinikolaou

Clerk

Date of hearing:  1 July 2008
Date of decision:  10 July 2008
Counsel for the applicant:            Mr T. Best
Solicitor for the applicant:            Victoria Legal Aid
Advocate for the respondent:       Mr T. de Uray, Centrelink Legal Services Branch