FARDIN NIKJOO and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 72
•9 February 2012
[2012] AATA 72
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4384
Re
FARDIN NIKJOO
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 9 February 2012 Place Sydney The Tribunal sets aside the decision under review and instead decides that in determining whether Mr Nikjoo exceeded the allowable study time for the purposes of payment of Austudy, the Autumn semester of 2011 should be disregarded.
................[sgd]........................................................
Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY - Austudy allowance - allowable time – allowable study time- calculation of allowable time – whether periods of time to be disregarded – decision set aside
LEGISLATION
Social Security Act 1991 (Cth), ss 568, 569, 569A, 569H, 570
CASES
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Click here to enter text.
REASONS FOR DECISION
Ms N Bell, Senior Member
9 February 2012
Mr Nikjoo enrolled in a Bachelor of Arts/Bachelor of Laws degree at the University of Western Sydney in 2006. The duration of the degree, comprised of semester long subjects, is five years. It is uncontroversial that, under the progress rules contained in section 569H of the Social Security Act 1991, the allowable study time for the course for Mr Nikjoo is 5.5 years. That period ended in mid-2011 and Centrelink cancelled Mr Nikjoo’s Austudy allowance. Mr Nikjoo contends that his Austudy should not have been cancelled.
Mr Nikjoo had failed two subjects in the Spring semester of 2006. He failed another subject in the Autumn semester of 2011.
Section 569H of the Act provides, relevantly:
(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;
If I am satisfied that Mr Nikjoo failed a year or part of a year of study because of illness or other circumstances beyond his control, then the period for which he may be paid Austudy can be extended past 5.5 years, that is, beyond mid- 2011.
ISSUE
The sole issue for me to consider is whether Mr Nikjoo failed a year of study or part of a year of study because of illness or other circumstances beyond his control.
WERE THE FAILURES BECAUSE OF ILLNESS OR OTHER CIRCUMSTANCES OUT OF MR NIKJOO’S CONTROL?
After telling Centrelink and the Social Security Appeals Tribunal that he had failed two subjects in the Spring semester of 2006 for reasons of illness, Mr Nikjoo said he had failed the two subjects because he was distracted by developments in a rekindled connection with his ex-wife who had by then remarried. He said he was unable to concentrate on his studies and consequently failed to prepare for or sit for his exams. He contended that this constituted circumstances beyond his control and that the semester should be disregarded.
Mr Nikjoo referred me to the High Court’s judgment in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, which he submitted was authority for the proposition that his inability to study for his exams amounted to an “infirmity of mind” and was therefore a matter beyond his control. I note that Amadio concerned relief against a contract claimed to be unconscionable. It has no application to Mr Nikjoo’s circumstances.
I cannot find that the circumstances Mr Nikjoo describes as responsible for his failure to sit his exams in 2006 were either an illness or beyond his control. I appreciate that his ex-wife had once meant a great deal to Mr Nikjoo and that her contact with him alleviated an otherwise lonely existence, but I am also mindful that she was residing overseas, remarried, and that their contact was restricted to the internet. He described himself as “lost in time whenever talking to her; totally overwhelmed”. He described it as an emotional reason for being unable to concentrate on his studies. He has presented no evidence of a psychiatric condition or of any steps he took to obtain assistance from a counsellor or medical practitioner. There is no evidence that he had an “infirmity of mind”. Many students are afflicted by lapses of concentration, preoccupation with others, and the sometimes obsessive aspects of personal relationships. The distraction Mr Nikjoo describes is not uncommon. To find that it is a circumstance beyond his control and that his allowable study time should, in effect, be extended by one whole semester, would open the door to that benefit being afforded to anyone who experienced intense preoccupation with another person short of a diagnosable obsessional disorder.
I consider that Mr Nikjoo’s failures in 2006 were not due to circumstances beyond his control and his Spring semester of 2006 should not be disregarded in the calculation of his allowable study time.
On 15 April 2011, Mr Nikjoo suffered an accident that resulted in elbow fractures. According to his general practitioner, Dr Sadiq Asar, his arms were in slings until approximately 10 June 2011.
In the Autumn semester 2011 Mr Nikjoo undertook Equity, Trusts and Remedies; Occupational Health and Safety; Professional Responsibility and Legal Ethics and a practical placement. He failed Equity, Trusts and Remedies. Mr Nikjoo said his Equity, Trusts and Remedies exam was worth 55% of the total mark. The University of Western Sydney Autumn 2011 calendar shows that the exam session commenced on 14 June 2011. Mr Nikjoo sat the Equity, Trusts and Remedies exam on 15 June 2011, according to correspondence from the University. His evidence was that he had obtained a mark of 18/35 for the one assignment for the subject and so his exam marks were very important. The learning guide for that unit of study shows that his assignment was due on 27 April 2011, just eight days after his injury. He said he did poorly in that assignment because of his arms. I note that, on the basis of the medical certificate of Dr Asar, Mr Nikjoo would have just finished with the slings at the commencement of the Autumn semester exam period. Mr Nikjoo said he got 24/55 for the exam. He said the pain in his arms when writing meant that he could not complete all of the questions. He said his Occupational Health and Safety subject had no exam and was comparatively “easy”. He said his Professional Responsibility and Legal Ethics subject had an exam but it did not constitute the majority of the marks and there were a lot of class presentations on which he was assessed.
Mr Nikjoo said he never inquired about assistance in the exam and never requested special consideration in respect of his mark in the Equity, Trusts and Remedies exam. He gave no explanation for not asking for assistance, but in relation to special consideration he said he knew how poorly he had done in his assignment and that a few extra marks would not assist.
He had initially claimed that he failed two subjects because of his elbows, but at hearing said he had withdrawn from the second subject prior to the census date of 31 March 2011 and, because his accident was on 15 April 2011, his withdrawal from the subject could have had nothing to do with his elbow injuries.
The Secretary contended that Mr Nikjoo appeared not to have had problems completing his other three subjects and suggested that Mr Nikjoo had failed Equity, Trusts and Remedies simply because he had found it hard. I am persuaded by Mr Nikjoo’s evidence of why he had been able to succeed in his other subjects but not in Equity, Trusts and Remedies. I accept that he had difficulty writing in the exam and I regard the injury to his elbows as both an illness and as circumstances beyond his control. On this basis, I consider that Autumn semester of 2011 should be disregarded in the calculation of his allowable study time.
Mr Nikjoo raised a subject that he had enrolled in and completed in 2006 that did not count towards his degree. He contended that he undertook this subject in error and the time it took to complete it should be disregarded. Section 569H(7), a copy of which is attached to these reasons, does not provide for the disregarding of a period of study where the subject was undertaken in error.
DECISION
The Tribunal sets aside the decision under review and instead decides that in determining whether Mr Nikjoo exceeded the allowable study time for the purposes of payment of Austudy, the Autumn semester of 2011 should be disregarded.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.
....................[sgd].................................................
Associate Rawan Abdul-Nabi
Dated 9 February 2012
Date of hearing 13 January 2012 Date final submissions received 23 January 2012 Applicant In person Solicitors for the Respondent Biljana Salaji
0
1
0