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

This matter concerned an application for review of a decision by the Secretary of the Department of Social Services to suspend the applicant's youth allowance due to an overseas absence. The applicant, Mr. Choy, contended that his absence from Australia was for the purpose of undertaking studies that formed part of his course of education, thereby entitling him to continued payment of youth allowance. The Secretary's decision was under review by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant's absence from Australia fell within the exemption to the standard six-week portability limit for youth allowance payments, as provided by section 1218 of the Social Security Act 1999 (Cth). Specifically, the Tribunal had to determine if the applicant's travel was solely for the purpose of undertaking studies that formed part of his course of education, as required by section 1218(2).

The Tribunal considered the applicant's submission that his travel to Singapore was primarily for study purposes, with connecting with family and friends being a secondary benefit. The Tribunal noted that section 1218(2) requires the absence to be "for the purpose of undertaking studies that form part of the course of education." The Explanatory Memorandum to the relevant amending legislation indicated that a decision-maker could determine that a period of absence was not for the purpose of undertaking studies if a person travelled overseas a significant time before the commencement of an overseas unit of study. In this instance, the Tribunal found that the applicant had not established that his absence was solely for the purpose of undertaking studies, and therefore the exemption under section 1218 did not apply. The decision under review was affirmed.