Choy and Secretary, Department of Social Services (Social services second review)

[2018] AATA 2503

Choy and Secretary, Department of Social Services (Social services second review) [2018] AATA 2503 (27 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4602

Re:Yinsing Choy

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:27 July 2018

Place:Sydney

The decision under review is affirmed.

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Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – youth allowance – suspension due to overseas absence – maximum portability period – exemption for purpose of undertaking studies that form part of the course of education – decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) s 80

Social Security Act 1991 (Cth) ss 1217, 1218

SECONDARY MATERIALS

Social Services and Other Legislation Amendment (2014 Budget Measures No. 6) Bill 2014 (Cth) Explanatory Memorandum

REASONS FOR DECISION

Senior Member A Poljak

27 July 2018

1. Mr Choy, the applicant, has been in receipt of youth allowance payments since 22 March 2016 and is currently enrolled in a Bachelor of Law degree at Macquarie University; which he expects to complete on 5 December 2019.

2. In November 2016, the applicant informed the Department of Human Services (“the Department”) that he intended to travel to Singapore between 9 December 2016 and 17 January 2017 (“the relevant period”). On 9 December 2016, the applicant was notified that his youth allowance payments had stopped from that date because he was not in Australia. The applicant’s youth allowance payments were restored on his return to Australia on 17 January 2017.

3. The youth allowance payments during the relevant period total the sum of $1100.50.

4. In these proceedings, the applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) made on 22 June 2017. In its decision, the SSCSD affirmed the decision of an authorised review officer of the Department made on 28 March 2017, affirming the decision of the Department on 9 December 2016, to suspend the applicant’s youth allowance payments during the relevant period. The reason for the decision was that during the relevant period, the applicant was not in Australia and the applicant’s absence from Australia was not for the purpose of undertaking study as part of a course of education at an educational institution; section 1218 of the Social Security Act 1991 (Cth) (“the Act”).

5. The issue for determination in these proceedings is whether the applicant satisfied section 1218 of the Act during the relevant period.

   Relevant Legislative Provisions

6. If the Secretary is satisfied that a Social Security payment is being, or has been, paid to a person who is not, or was not, qualified for the payment, the Secretary is to determine that the payment be cancelled or suspended under section 80 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”).

7. Section 1217 of the Act states that the maximum portability period for a person on a youth allowance payment is 6 weeks in the following limited circumstances: to seek eligible medical treatment; to attend to an acute family crisis; or for a humanitarian purpose.

8. Section 1218 of the Act relevantly provides an exemption to the portability provisions for full‑time students who travel outside of Australia for the purposes of undertaking studies that form part of the course of education. Sections 1218(1) and (2) provide:

   (1)  This section applies if, immediately before the period of absence commenced:

   (a)  the person was undertaking full‑time study as part of a course of education at an educational institution; and

   (b)  the person was receiving disability support pension, wife pension, carer payment, widow B pension, widow allowance, parenting payment, youth allowance, austudy payment or partner allowance.

   (2)  The person’s right to continue to be paid disability support pension, wife pension, carer payment, widow B pension, widow allowance, parenting payment, youth allowance, austudy payment or partner allowance is not affected merely by the person’s absence throughout so much of the period of absence as is for the purpose of undertaking studies that form part of the course of education.

   … [Emphasis added]

9. The Explanatory Memorandum to the Social Services and Other Legislation Amendment (2014 Budget Measures No. 6) Bill 2014 (Cth) (“Explanatory Memorandum”) states:

   New subsection 1218(4) provides that the Secretary may, by legislative instrument, make principles that must be complied with when deciding how much of a period of absence is for the purpose of undertaking studies that form part of the course of education. Such principles could, for example, provide that a short period of time before the commencement of an overseas unit of study is for the purpose of undertaking studies. If such principles were made and a person were to travel overseas a significant time before the commencement of their overseas unit of study, then a decision-maker could decide that some of that time is not for the purpose of undertaking studies. If this were to occur, the exception to the portability rules in section 1218 would not apply, and the social security payment may not be payable for some of the period that the person is overseas.

   Consideration and Decision

10. The applicant contends that he is entitled to be paid youth allowance during the relevant period despite his absence from Australia because his travel was “for the purpose of undertaking studies that form part of a course of education” in accordance with s 1218(2) of the Act. The applicant submits that he only confirmed his travel to Singapore after finding out that the unit of study he enrolled in during the relevant period was offered online. He claims that being able to connect with his family and friends over the holiday period was merely an added benefit of his travel rather than his primary purpose.

11. The applicant further contends that the “purpose” of his overseas absence, under s 1218(2) of the Act, should be determined solely by his objective and intention; which he referred to as the “wide scope interpretation” of the legislation. He submitted that the word “purpose” means “dominant purpose” as opposed to “sole and single purpose”, and that his “objective and intention” to travel overseas to study was evidenced by his very good grades and the fact that he voluntarily enrolled over the semester break. The applicant argues that the fact that he was not required to study in Singapore was of no relevance and that a student can study anywhere in the world and still satisfy s 1218(2) of the Act provided that an individual demonstrates their intention and objective of studying.

12. A plain reading of s 1218(2) of the Act makes clear that the period of absence must be for the purpose of undertaking studies that form part of the course of education. The subsection refers to “the purpose” as opposed to “a purpose”. The portability provisions do not allow payments to be made for a student to simply “undertake studies”; the purpose of travel must be to undertake an overseas unit of study that forms part of the course of education. The portability provisions are intended to apply in limited circumstances and do not apply to fund overseas travel generally, or to undertake studies that are not part of the course being studied in Australia.

13. There does not appear to be any dispute that the applicant studied whilst overseas during the relevant period; and this is evidenced by his grades. However, despite the applicant completing the unit of study online, there is no evidence before me to demonstrate that the applicant’s absence from Australia was for the purpose of undertaking studies that formed part of his course of education. To the contrary, correspondence from Macquarie University confirmed that the unit of study undertaken by the applicant did not have an overseas component. An email from Macquarie University dated 27 March 2017, stated the following:

    “Mr Choy commenced his studies at Macquarie University in session 2, 2016. Mr Choy is enrolled in the Bachelor of Laws. Mr Choy studied LAWS521 in session 3, 2016. Mr Choy was enrolled in LAWS521 as part of his Bachelor of Laws degree.

    Mr Choy was enrolled in this unit internally. This unit did not have any overseas component and was taught on campus in North Ryde, NSW.

    Session 3 2016 ran from 05 Dec 2016 to 30 Jan 2017.” [Emphasis added]

14. As the applicant was not required to study in Singapore, I am not convinced that his absence was for the primary purpose of undertaking studies that form part of his course of education in Australia. Accordingly the applicant does not satisfy s 1218(2) of the Act and his youth allowance payments were correctly suspended during the relevant period under s 80 of the Administration Act.

15. The decision under review is affirmed.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 27 July 2018

Date(s) of hearing:	22 January 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services