CHERIE DOAN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 365

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 365

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0051

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHERIE DOAN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal G. D. FRIEDMAN, Senior Member

Date22 April 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

..............................................

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2010/0051

DOAN

and

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

THURSDAY, 22 APRIL 2010

MSC. DOAN appears in person
MR A. PASCALE appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:  The decision under review is a decision made by the Social Security Appeals Tribunal on 27 November 2009, which affirms a decision made by Centrelink on 12 June 2009 to reject Ms Doan’s claim for Austudy payment because Centrelink said she exceeded the allowable study time.  So, the issue to be decided is whether the claim for Austudy payment was correctly rejected on the basis that she did not satisfy the progress rules under [section] 569H of the Social Security Act [1991 (the Act)], which requires me to make a decision on whether she exceeded the allowable study time and whether any previous study should be disregarded on the exclusion provisions of section 569H(7) of the Act.

There’s no real dispute on the facts of this case, and they are that Ms Doan completed a graduate diploma in medical laboratory science at RMIT University.  She started in 1997 and has then studied part time.  She completed two subjects in 1997, and I think it was four subjects in 1998, yes, and two subjects in 1999 … 1997 and 1999 were part time and 1998 were full time, and she completed the graduate diploma and was admitted to that award on 10 May 2000.  She commenced studies for a bachelor of pharmacy at the University of Tasmania a couple of years later and did not complete that course.

And then 1990 – 2009, she enrolled in a graduate diploma of education course at La Trobe University.  That is a one year full-time course, two years part-time course.  She completed the first year, two semesters part time in 2009, and is currently studying the final year, being the second year of her course, part-time, in 2010.  She completed a Claim for Austudy form at Centrelink on 19 March 2009.  There’s no dispute that the graduate diploma in education course is one year full-time or two years part-time, as I’ve just said, and I’m satisfied that the graduate diploma in medical laboratory science at RMIT university is similarly a one year full-time, two year part-time course.

When Centrelink decided to refuse the application for Austudy in 2009, Ms Doan was told that [it was refused] because her previous study was of the same level and was completed within the 10 years … she’d already studied for one year at RMIT university, which was the allowable time.  So she had already completed the allowable time, and that’s why her application was refused.  And that decision was affirmed by the Social Security Appeals Tribunal.

The legislative requirements under the Social Security Act, Austudy payments eligibility, qualification is set out in section 568 of the Act, and section 569 states that a person … satisfies the activity test for Austudy if the person is undertaking a qualifying study which is set out in section 569A, and under that section of the Act, a person (subsection (c)) … is a full-time student or concessional study load student, and subsection (d) provides the person satisfies the progress rules, which are set out in section 569H.  Therefore, undertaking qualifying study requires, among other things, that the person satisfies the progress rules, and section 569H of the Act provides the person satisfies progress rules if the time already spent by the student on the course, or on one or more tertiary courses at the same level of the course, does not … exceed the allowable study time for that course, and the meaning of allowable study time is set out in section 569H(3) of the Act.

Subsection (a), if the minimum amount of time to complete the course as a full-time study student is one year or less, that minimum amount of time.  And there’s no dispute that both the medical science laboratory course and the education course are level A courses and are the same level pursuant to section 569H(8) and (9) of the Act.  So, I find that Ms Doan has undertaken at least one year’s study in respect of a level A course under section – section 569H(8) and (9) of the Act.  And then the formula needs to be applied to determine the amount of time spent studying part-time.  That’s set out in section 569H(5).  And applying that formula, I find that Ms Doan has undertaken one year of study at level A and she cannot satisfy the progress rules, because she’s already satisfied one year, she’s already completed one year of the earlier course.

There are exceptions to the rule, and they are set out in section 569H(7), which provides that certain periods of study time that may be disregarded, and they are set out in detail in those subsections.  And they basically apply if the person has failed or failed to complete portions of the study and there are reasons such as illness or circumstances beyond the person’s control.  I find that none of the provisions apply to Ms Doan, as set out in the Secretary Statement of Facts and Contentions;  the first course was not a prerequisite for the second course, there’s no evidence that Ms Doan failed any year or part of the year of the first course;  she did not discontinue the first course and it was completed.

There’s no evidence that she was ill while undertaking the first course.  The first course is not a TAFE course or a course provided by a VET provider, and was within the 10-year period prior to 26 Mach 2009.  RMIT University is not a foreign institution and there’s no evidence that Ms Doan withdrew from any subjects in the first course.  But, accordingly, as I’ve mentioned, none of the provisions of section 569H(7) apply, to disregard any of the time spent in respect of her level A study.  Therefore, she cannot satisfy the general rule for Austudy payment qualifications in respect of her course in education, and the correct or preferable decision is that the decision made by Centrelink and affirmed by the Social Security Appeals Tribunal be affirmed.

Ms Doan has stated during the course of the hearing that she believes that the formula for the study loads is unclear;  she said that the time for the study – the provisions for the timing of the study are ambiguous and, as a consequence, the laws need to be changed.  I’ve already pointed out to Ms Doan during the course of the hearing, it’s not for this Tribunal to comment on whether the laws are correct or incorrect, or ambiguous or not ambiguous.  This Tribunal has a role to apply the legislation as it exists.  In my view, the submission from Mr Pascale is correct inasmuch as … she exceeded her allowable study time on the basis of the amount of study she did and the time she spent on the first course, so that the rules regarding the equivalent full-time student load, even if they were ambiguous or unclear, do not apply in this case to Ms Doan’s application.

What I’m saying, Ms Doan, is that even if there is some validity in your submission that there is some ambiguity or lack of clarity in the legislation, I don’t believe it applies to your particular case because you completed one year of study – equivalent of one year of study in your first course, and as a consequence of that, and because a 10-year period had not expired when you applied for Austudy for your current course, you can’t succeed.  So I’m sorry, I’m unable to help you, but if you just wait around after I leave, Mr Pascale will assist you.

END OF EXTRACT