Elieff and Secretary, Department of Social Services (Social security) - [2025] ARTA 757

Elieff and Secretary, Department of Social Services (Social security) [2025] ARTA 757 (13 March 2025)

Applicant/s: Mr Elieff

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/M192085
Tribunal: General Member B Walters
Place:Sydney
Date:13 March 2025

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:

1.From 6 February 2023 to 23 May 2024, Mr Elief was entitled to payments of jobseeker payment made to him in accordance with paragraph 613(2)(b) of the Social Security Act 1991;
2.Jobseeker payment was not payable to Mr Elief from 24 May 2024 in accordance with paragraph 613(1)(a) of the Social Security Act 1991;
3.The Commonwealth’s right to recover any jobseeker payment debt arising after reconsideration on this basis is waived under section 1237AAD of the Social Security Act 1991; and
4.Any amount recovered in repayment of the debt is to be refunded to Mr Elief.

CATCHWORDS
SOCIAL SECURITY – JobSeeker Payment – full-time student – study included in job plan with first employment services provider – not included in plan with second provider, who advised applying for Austudy – planned study for two years – general rule that approved study should be less than 12 months not binding – after reconsideration, smaller debt will remain – no false statement or non-compliance – special circumstances – notionally entitled to another social security payment – study towards essential work in field with skills shortage – financial circumstances – appropriate to waive debt – decision under review set aside and remitted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

This application is about whether Mr Elief has a jobseeker payment debt which must be recovered.
Services Australia (Centrelink) made a decision to raise and recover a debt of $27,345.69 from Mr Elief for the period 6 February 2023 to 12 July 2024.
A Centrelink officer contacted Mr Elief by phone on 2 October 2024, to advise him of the debt, and Mr Elief asked for an internal review immediately.[1]
[1] Page 91 of the hearing papers.
Centrelink also notified Mr Elief of the decision in writing by letter the following day, writing:[2]
As you commenced full time studies on 06 FEB 2023 you were not entitled to receive JobSeeker Payment from this date.
[2] Page 175 of the hearing papers.
On 11 October 2024, an authorised review officer (ARO) affirmed the decision. They wrote:[3]
After carefully considering all relevant information, I have not changed the decision. This is because you were paid JobSeeker Payment when you were not entitled after you commenced full-time study on 6 February 2023.
[3] Page 13 of the hearing papers.
The following month, on 17 November 2024, Mr Elief sought further review of the debt decision from the Administrative Review Tribual (the Tribunal).
The Tribunal conducted a telephone hearing on 14 February 2025. Mr Elief appeared and provided affirmed evidence by telephone. The Tribunal had before it a bundle of documents numbering 188 pages provided by Centrelink (the hearing papers), a copy of which had been received by Mr Elief prior to the hearing. The Tribunal also had regard to a Statement of Financial Circumstances prepared by Mr Elief.

ISSUES

The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act).
The application raises the following issues:
· Whether Mr Elief has a debt to the Commonwealth; and, if so
· Whether there is any basis for non-recovery of the debt.

CONSIDERATION

Issue 1 – Whether there is a debt to the Commonwealth

Mr Elief claimed jobseeker payment on 23 December 2021.[4] In his claim he advised that he was born in Iraq, and that he started to reside in Australia on 20 December 2021. He declared he was a refugee or former refugee. He was 23 years old.
[4] Pages 20 to 25 of the hearing papers.
Mr Elief gave evidence at the hearing. The Tribunal has no reservations in relation to Mr Elief’s credit as a witness. His evidence was straightforward and lucid. He told the Tribunal that initially he was exempt from the activity test for jobseeker payment because he had arrived in Australia on a humanitarian visa. Then he started seeing an employment services provider in [Suburb], [Provider 1], perhaps in late 2021 or early 2022.
When he was first connected with [Provider 1], he was already studying full-time, completing a 6-month tertiary preparation course. He had commenced this course in lieu of an English language course, as his English language skills were sound enough by that time. Mr Elief said that his study in the tertiary preparation course was included in the job plan prepared by [Provider 1]. This is consistent with a job plan contained in the hearing papers at page 62.
Mr Elief completed the tertiary preparation course in late 2022. He then had some discussions with [Provider 1] about what he might do next, whether he should do further study, and if so, what course he might do.
In undertaking the tertiary preparation course, Mr Elief found that he had an appetite for study, and some aptitude. He considered the matter and decided to continue his studies.
Mr Elief told [Provider 1] that he planned to continue study and that he had applied for entry to an associate degree course commencing in 2023 and he was told that this was fine.
Mr Elief started the associate degree as a full-time student in 2023. His continuing full-time study was included in his job plans.
Every 2 weeks Mr Elief would attend [Provider 1] in person or speak with a [Provider 1] worker over the phone. He gave the service copies of his university timetables to verify that he was doing the full-time study he had agreed to do as an approved activity under his job plan. These and other documents related to his study were scanned by [Provider 1] and uploaded to his record. Mr Elief said that he did not miss any of his appointments and he received no penalties or suspensions of his jobseeker payment during this time.
In 2024, Mr Elief was referred to a new employment services provider, [Provider 2], and there he was advised that he should apply for austudy because he was a full-time student. He lodged a claim for austudy promptly on 11 June 2024.[5] The claim document in the hearing papers shows that he declared he was in the second year of an associate degree he had commenced on 6 February 2023.[6] He indicated that the length of the course was 2 years.
[5] Page 30 of the hearing papers.
[6] Page 34 of the hearing papers.
On 23 July 2024, Centrelink cancelled Mr Elief’s jobseeker payment, writing:[7]
Your JobSeeker Payment has been cancelled from 6 February 2023 because you commenced or have returned to full-time studies.
[7] Page 129 of the hearing papers.
The following month, the debt under review was raised.
Subsection 1223(1) of the Act provides that if a person who obtains the benefit of a social security payment was not entitled for any reason to obtain that benefit, the amount of the payment is a debt due to the Commonwealth by the person.
Qualification for jobseeker payment is set out at section 593 of the Act. Note 13 to subsection 593(1) states that a jobseeker payment is not payable in certain situations even if the person is qualified.
Section 613, at Subdivision D of the Act, relevantly provides:
613 Full‑time students
(1) Subject to subsection (2), a jobseeker payment is not payable to a person who is enrolled in a full‑time course of education or of vocational training for the period that:
(a) starts when the person starts the course; …
(2) Subsection (1) does not prevent a jobseeker payment from being payable for any period during which:
(b) the person is engaged in a course undertaken under an employment pathway plan; ...
Centrelink’s policy document, the Social Security Guide (the Guide), discusses the inclusion of full-time study in a job plan (i.e. an employment pathway plan) at 3.11.3.10 as follows:
3.11.3.10 Study & training
Introduction
Social security law precludes full-time students from qualifying for JSP, unless they undertake a course of full-time education or training in accordance with a compulsory term of a Job Plan. The intention of this is primarily to allow job seekers who are unlikely to find work with their existing skills to complete courses with a vocational focus that will enhance their immediate employability.
Participation in a full-time course for JSP & YA (other) recipients - general rule
Approved study for the purposes of meeting a person's mutual obligation requirements must meet certain criteria. Generally, approved study should be less than 12 months in duration and:
·     completing the course is likely to lead to an employment outcome for the job seeker, OR
·     there is little chance of the job seeker finding employment with their existing skills, OR
·     the course will lead to qualifications in an identified area of skills shortage, OR
·     is in a course in areas of high labour demand.
For most JSP and YA (other) recipients (except for those in Workforce Australia Online), participation in a full-time education or training course can generally be approved by their provider…
Full-time academic courses cannot be approved for a JSP recipient just because they have exhausted their allowable time/reasonable time on a student payment. However, full-time academic study can be approved under the above conditions, for example, where a person has so far been unsuccessful in their job search and has only a semester to complete in order to obtain a degree that would greatly improve their employment prospects….
The policy set out in the Guide is not law. The Tribunal may be guided by the policy, but it is not bound to follow it.[8] Where it is not inconsistent with the legislation, the policy is a relevant factor for the Tribunal to take into account when reviewing a decision.[9] The policy set out at 3.11.3.10 of the Guide is not, in the view of the Tribunal, inconsistent with the legislation and it is appropriate to consider it.
[8] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 and Hneidi and Others v Minister for Immigration and Citizenship [2010] FCAFC 20.
[9] G v MIBP [2018] FCA 1229.
In the internal review decision, the ARO wrote:[10]
JobSeeker Payment is not payable to full-time students, unless they are doing a short course (less than 12 months) approved by Services Australia or an employment services provider, and it is included in their Job Plan.
[10] Page 15 of the hearing papers.
However, the policy does not purport to prevent payment of jobseeker payment to a full‑time student completing a course longer than 12 months. Rather, it suggests that as a general rule approved study should be less than 12 months duration.
The hearing papers contain job plans prepared by Mr Elief’s employment services provider, [Provider 1], which, while undated, include as an approved activity Mr Elief’s full-time study for the periods 8 July 2022 to 6 July 2023, 5 July 2023 to 5 October 2023, 5 October 2023 to 30 June 2024, and 12 February 2024 to 30 November 2024.[11] Consistent with the policy, Mr Elief’s study was approved by his employment services provider.
[11] See pages 62, 65, 68 and 71 of the hearing papers.
On the available evidence, the Tribunal is satisfied that from 6 February 2023 Mr Elief was undertaking full-time study toward his associate degree as an approved activity under a job plan.
However, on 24 May 2024 Mr Elief signed a new job plan.[12] He was, at the time, being transferred from [Provider 1] to [Provider 2] in [Suburb]. The job plan dated 24 May 2024 is not contained in the hearing papers, but the Tribunal is satisfied on the available evidence that this job plan did not include, as an approved activity, Mr Elief’s full-time study.
[12] Page 58 of the hearing papers.
The Tribunal finds that, pursuant to paragraph 613(2)(b) of the Act, Mr Elief was payable in respect of jobseeker payment from 6 February 2023, despite being a full-time student, until he signed the job plan dated 24 May 2024.
The Tribunal will make orders setting aside the decision under review and requiring Centrelink reconsider the matter on the basis that jobseeker payment was payable to Mr Elief for the period 6 February 2023 to 23 May 2024.
After reconsideration on this basis, a debt will remain, though it will be smaller. For this reason, it is appropriate to consider whether such a debt should be recovered.

Issue 2 – Whether there is any basis for non-recovery of the debt.

Section 1237AAD of the Act provides for waiver of all or part of a debt in special circumstances:
Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
To contemplate waiver on the basis of special circumstances, the Tribunal must be satisfied that the debt did not result, in any part, from Mr Elief or another person, knowingly making a false statement or false representation, or knowingly failing or omitting to comply with a provision of the social security law.
The Tribunal discussed the term “knowingly” in Callaghan and SDSS [1996] AATA 413:[13]
There is nothing in section 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement of the act or omission.
[13] at [48].
In SDFaCS and Jonauskas [2001] AATA 72, the Tribunal clarified that “knowingly” refers to “a deliberate choice and means actual knowledge” rather than “recklessness”.[14]
[14] at [73].
The ARO wrote:
You have a JobSeeker Payment debt of $27,345.69 for the period 6 February 2023 to 12 July 2024 because you did not tell us you had commenced full-time study.
Mr Elief wrote in his application to the Tribunal:
… I did not know that I cannot study full time and receive Job Seeker payment at the same time otherwise I would not do it, and since I do not know, isn't it the job provider's job to let me know that I am not entitled for Job Seeker payment while studying? All I know is I am doing the right thing until I was moved to a new provider and they advised me for an Austudy payment which I applied immediately. In addition, I thought that the Centrelink and the job provider are connected with each other, because each time the job provider would take my job plan, timetables, and study related documents and they upload it, so I thought that the Centrelink knew my study details.
This is consistent with Mr Elief’s evidence at hearing. As discussed, the Tribunal considers Mr Elief a credible witness and accepts his evidence. The Tribunal finds that the debt did not arise because Mr Elief or any other person knowingly made a false statement or false representation, or knowingly failed or omitted to comply with a provision of the social security law. This being the case, the Tribunal may consider whether there are special circumstances which would make waiver of all or part of Mr Elief’s debt desirable.
Special circumstances is not defined in the Act. The case law indicates that the circumstances must be unusual or out of the ordinary such that the application of the usual rules would be unfair, or unjust.[15] While the circumstances must be special, they do not need to be exceptional.[16] Ordinarily, there must be something about the circumstances of a case that would distinguish it from the usual run of cases, for the Tribunal to consider waiver.[17]
[15] Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones [2012] FCA 639 at [51].
[16] Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33].
[17] Dranichnikov v Centrelink [2003] FCAFC 133 at [66].
It is relevant to the Tribunal’s considerations that Mr Elief was born in Iraq and had arrived in Australia with his family as a humanitarian entrant as a young adult. Prior to his arrival in Australia, he and his family had spent 6 years living in a refugee camp in Jordan.
Mr Elief had lived in Australia for less than 5 years prior to the commencement of the period of the debt under review. He had only limited familiarity with Centrelink rules and processes, and he was not aware that jobseeker payment was no longer payable to him once he signed a new job plan on 24 May 2024 which did not include his full-time study as an approved activity.
A person’s notional entitlement to another social security payment is a matter capable of being a special circumstance warranting waiver.[18] The Tribunal is satisfied on the background of Mr Elief’s full-time study that he was notionally entitled to austudy during the period of any debt arising from 24 May 2024. For instance, following advice provided to him at his first appointment with his new employment services provider, [Provider 2], on 5 June 2024, Mr Elief lodged a claim for austudy on 11 June 2024 which was granted.[19] Mr Elief could have claimed and been granted austudy from 24 May 2024, had he known he needed to.
[18] Oberhardt v Secretary, DEEWR [2008] FCA 1923.
[19] Pages 59 and 131 of the hearing papers.
Further, austudy would have been payable to Mr Elief at a rate similar to jobseeker payment. Austudy is payable at a higher rate to long term income support students, pursuant to section 1067K of the Act. Mr Elief meets the requirements to be paid as a long term income support student under subsection 1067K(2) as he does not have a dependent child, does not speak English as a first language, and is undertaking study in English. As at 24 May 2024, the difference between the basic rate of jobseeker payment and the basic rate of austudy for a long term income support student was $8.10 per fortnight.[20]
[20] See the A guide to Australian Government payments as at 20 March 2024.
Mr Elief is currently in receipt of austudy while he works toward completion of a bachelor degree which will allow him to undertake work as an essential worker in a field currently experiencing skills shortage. He lives in rented accommodation with his parents and his 2 brothers. His parents receive age pension and are in poor health. Mr Elief’s brothers provide care to their parents and receive carer payment. Mr Elief has the most advanced level of English language skill of the family members and provides practical support to his brothers and his parents in relation to their personal matters in addition to undertaking his studies.
Mr Elief provided the Tribunal with a Statement of Financial Circumstances. He receives no income other than his fortnightly austudy payment. His expenses are modest and unremarkable. Mr Elief’s debts include only the debt under review and his FEE-HELP debt which will continue to increase as he progresses with his studies, but which is not yet payable. He has a small amount of savings but otherwise he has no assets of note.

In consideration of Mr Elief’s circumstances, the Tribunal is satisfied they are sufficiently special as to warrant waiver of any debt which arises in respect of payments of jobseeker payment made to Mr Elief for periods on or after 24 May 2024. The Tribunal has had particular regard to Mr Elief’s notional entitlement to austudy and the challenging personal circumstances and displacement of Mr Elief and his family.
The Tribunal considered whether it was more appropriate to waive recovery of the debt than to write it off. Having regard to Mr Elief’s financial circumstances, which are unlikely to significantly improve in the near future as he continues his tertiary studies, the Tribunal concludes that it is more appropriate to waive than to write off the debt under review.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:

From 6 February 2023 to 23 May 2024, Mr Elief was entitled to payments of jobseeker payment made to him in accordance with paragraph 613(2)(b) of the Social Security Act 1991;
Jobseeker payment was not payable to Mr Elief from 24 May 2024 in accordance with paragraph 613(1)(a) of the Social Security Act 1991;
The Commonwealth’s right to recover any jobseeker payment debt arising after reconsideration on this basis is waived under section 1237AAD of the Social Security Act 1991; and
Any amount recovered in repayment of the debt is to be refunded to Mr Elief.

Date(s) of hearing:	Friday, 14 February 2025
Representative for the Applicant:	Self-represented