Ferguson and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 532
•25 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 532
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600888
GENERAL ADMINISTRATIVE DIVISION ) Re PETER FERGUSON Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date25 June 2008
PlaceMelbourne
Decision
The Tribunal sets aside the decision under review and remits the matter to the respondent to calculate the total ABSTUDY payments made to Mr Ferguson as a consequence of his application for ABSTUDY received on 19 November 1999; and to raise a debt for the entire sum paid to Mr Ferguson as a consequence of the acceptance of the ABSTUDY claim.
(sgd) Egon Fice
Member
SOCIAL SECURITY – ABSTUDY – Master of Education (Research)(Qualifying) Program – whether applicant enrolled in an approved course and studying at an approved institution – whether applicant was entitled to payments – overpayment – whether attributable solely to administrative error – waiver ‑ special circumstances ‑ whether applicant knowingly made a false statement
Students Assistance Act 1973
Student Assistance Regulations 2003
REASONS FOR DECISION
25 June 2008 Mr Egon Fice, Member 1. On 13 July 1999, following an application for admission to Southern Cross University (SCU), Mr Ferguson was advised his admission to the Master of Education (Research) (Qualifying) Program (Masters Qualifying Program) had been approved. Mr Ferguson then made an application for a study grant under the Aboriginal Study Grants Scheme (ABSTUDY). This application was approved and Mr Ferguson was paid under ABSTUDY for full‑time study between June 1999 and July 2002.
2. In October 2001, Centrelink, which administers the ABSTUDY scheme for the Department of Education, Employment and Workplace Relations, made enquiries about Mr Ferguson’s enrolment at SCU and was informed he was not enrolled for the 2001 year. Centrelink was told Mr Ferguson’s last date of enrolment was 31 December 2000. Following a period of confusion about whether Mr Ferguson was enrolled at SCU, Centrelink restored Mr Ferguson’s ABSTUDY payments in November 2001. In July 2002 a Centrelink officer decided that Mr Ferguson was not studying in the first semester of 2002 and he was therefore not entitled to ABSTUDY payments from 1 December 2001. There followed another period of confusion regarding whether Mr Ferguson was enrolled which finally resulted in Centrelink investigating Mr Ferguson’s enrolment status at SCU and concluding he was not enrolled after 7 December 2000. Centrelink decided Mr Ferguson was not entitled to ABSTUDY after December 2002 and therefore he had been overpaid $27,204.09. Centrelink raised a debt of $27,204.09, which it decided was repayable by Mr Ferguson.
3. Mr Ferguson sought review of the Centrelink decision by an Authorised Review Officer (ARO). After consideration of Mr Ferguson’s case, the ARO affirmed the initial decision. Mr Ferguson sought review by the Social Security Appeals Tribunal (SSAT). On 18 August 2006 the SSAT affirmed the decision to raise and recover a debt of $27,204.09. Mr Ferguson then applied to this Tribunal to review the SSAT decision. However, before this matter came on for hearing before me, Centrelink noted Mr Ferguson had received repayment of enrolment fees in the amount of $933.22 which was paid under HECS (Higher Education Contribution Scheme). Therefore, Centrelink amended the amount of the debt to include the reimbursement; resulting in a debt of $28,131.92. That seems to be incorrect, as the total is in fact $28,137.31, a discrepancy of $5.39. However, for the reasons set out below, the apparent error is irrelevant.
4. The issues raised by this matter are:
(a)the nature of the course in which Mr Ferguson enrolled;
(b)whether Mr Ferguson was in fact studying in the course for which ABSTUDY payments were accepted;
(c)the amounts of ABSTUDY payments, if any, that Mr Ferguson was entitled to; and
(d)whether Mr Ferguson should repay any ABSTUDY grants payments he received.
RELEVANT BACKGROUND
5. Mr Ferguson applied for admission to SCU on 5 May 1999. He sought enrolment in a Masters Degree by Research. When he applied to enrol in the Masters Degree, Mr Ferguson held a Bachelor of Arts (Education) Degree, conferred on 9 January 1992 by Deakin University. Mr Ferguson’s proposed supervisor was Professor Errol West. Professor West recommended Mr Ferguson be admitted to the Master of Education (Research) (Masters Degree) course. Professor West also noted that Mr Ferguson’s previous training for research could not be accepted as adequate. He therefore recommended Mr Ferguson first complete the Masters Qualifying Program which included course work units to be completed by the end of the second semester of 1999. The course work units which Mr Ferguson was required to complete for the Masters Qualifying Program were described as Inquiry I (EDU00731) and Inquiry II (EDU00732). The major focus of Mr Ferguson’s Masters research proposal was said to be:
Research and determine the pre-conditions of cultural dysfunctions and their relationship to dealing with institutional racism
6. In a letter dated 13 July 1999 from Professor Peter Baberstock, Dean, Graduate College and Research, Mr Ferguson was advised that his application for admission to SCU was approved for the Masters Qualifying Program. That letter set out Mr Ferguson’s study program as follows:
1.Completion of a Detailed Literature Review, to the satisfaction of the Supervisor and College Director of Postgraduate Studies and Research.
2.Completion of a course in research methods to the satisfaction of the Supervisor and College Director of Postgraduate Studies and Research.
3.Completion of a Detailed Research Proposal to the satisfaction of the Supervisor and College Director of Postgraduate Studies and Research.
4.Completion of a Pilot Study, written up as a mini thesis, to the satisfaction of the Supervisor and College Director of Postgraduate Studies and Research.
7. Mr Ferguson’s mode of study was said to be full-time internal, commencing on 12 July 1999 and finishing on 12 July 2000. The maximum duration of the qualifying course was three semesters. The letter stated:
You are required to complete the requirements for the masters qualifying program no later than the completion date given above.
8. Most importantly, Mr Ferguson’s acceptance letter stated:
Once you have completed the above course of study, you should submit a new application for admission to the Master of Education by research program.
9. A student history report obtained by Centrelink from SCU in October 2005 records Mr Ferguson was admitted in 1999 to the Masters Qualifying Program. The results for that course were set out as follows:
Year
Study Session
Unit Code
Unit Name
Assessment Grade
MASTER OF EDUCATION QUALIFYING
1999
Research Semester 2
PG Qualifying Project
Withdrawn
RESEARCH ENRICHMENT UNITS
1999
Second Semester
EDU00731
Enquiry I
Fail
1999
Second Semester
EDU00732
Enquiry II
Fail
10. On 16 November 1999 Mr Ferguson lodged a claim with Centrelink for ABSTUDY. On the application form, where he was asked to state the exact course title and course code, Mr Ferguson wrote Master of Education. He indicated the course of study would take two years.
11. On 21 September 2000 SCU raised an invoice in respect of Mr Ferguson’s enrolment fee in the sum of $1,298.62. That invoice was paid by Centrelink and was described as HECS fees paid for 2000.
12. In August 2001, following a routine enquiry regarding Mr Ferguson’s enrolment, his ABSTUDY payments were suspended when SCU revealed Mr Ferguson had not enrolled in the first semester of 2001. This was confirmed in a letter from SCU dated 10 October 2001. The letter also indicated Mr Ferguson’s last date of enrolment for the course Master of Education (Research) (sic) was 31 December 2000. Therefore, Centrelink notified Mr Ferguson on 1 August 2002 that he was not entitled to receive ABSTUDY from 1 December 2001. The letter also indicated he had been overpaid $10,406.67 and that sum was required to be repaid to Centrelink.
13. Professor Errol West died in early 2001.
14. On or about 16 October 2001 SCU refunded $933.22 to Mr Ferguson in respect of his 2001 enrolment fee.
15. On 21 August 2001 Centrelink sent a notice to Mr Ferguson stating it believed he was not enrolled at SCU in semester 1 of 2001. When Mr Ferguson did not respond to that letter or provide proof he had enrolled, his ABSTUDY payments were suspended from 2 October 2001.
16. On 16 November 2001 Mr Ferguson wrote to Mr Mick Martin at SCU explaining the personal problems he had experienced in the past twelve months and that he understood Professor West was looking after his enrolment for the 2001 year. He also provided a brief hand-written document entitled Report on course of study. In that report, he recited to Mr Martin the nature of his thesis topic, the general objectives, and the nature of analytical methods to be used. He also set out a timetable for completion.
17. On 21 November 2001 a Centrelink officer annotated Mr Ferguson’s record indicating proof of enrolment at SCU had been received and Mr Ferguson was eligible for ABSTUDY payments. That resulted in Mr Ferguson’s ABSTUDY payments being resumed. There was no documentary evidence that Mr Ferguson was enrolled in the 2001 year.
18. Centrelink again conducted a routine enrolment check in April 2002 which revealed Mr Ferguson was not enrolled in semester 1 of that year. Mr Ferguson was sent another letter on 29 June 2002 informing him he had not enrolled. Mr Ferguson telephoned Centrelink on 3 July 2002 explaining he had experienced the same problem in the previous year. Centrelink records indicated that proof of enrolment was to be obtained again. However, when Mr Ferguson failed by 22 July 2002 to provide proof of enrolment, his ABSTUDY payments were cancelled and an overpayment was raised from 1 December 2001. Mr Ferguson was informed by a letter dated 1 August 2002 that he had been overpaid the sum of $10,406.67 and Centrelink required repayment of that amount.
19. After receiving the demand for repayment, Mr Ferguson contacted Centrelink on 16 September 2002 and said that he was enrolled at SCU for the first semester in 2002. He was asked to provide evidence of his enrolment and he agreed he would.
20. On 25 February 2004 Mr Ferguson telephoned Centrelink regarding the debt said to be owed to the Commonwealth. Mr Ferguson said due to circumstances involving the death of Professor West, who was his mentor; there was a mix-up with his enrolment. The Centrelink officer recorded he agreed to give Mr Ferguson the benefit of the doubt regarding his intention to resume studies in 2002 and the overpayment of ABSTUDY would be recalculated commencing on 18 February 2002. Mr Ferguson was asked to provide evidence from SCU that he undertook studies in the first semester of 2002. If he could demonstrate those studies had been completed, the officer indicated his debt would be reviewed despite the fact he may not have been enrolled.
21. On 23 March 2004 a Centrelink officer noted Mr Ferguson had not provided evidence of studies during the first semester of 2002 and the overpayment would now be recalculated commencing 18 February 2002. This resulted in an overpayment of $7,091.70, for which a debt was raised. A letter was sent to Mr Ferguson on 23 March 2004 notifying him of that decision.
22. On 20 September 2005 Mr Ferguson telephoned Centrelink requesting reconsideration of the decision to raise and recover the debt of $7,091.70. As a result of that contact, an ARO investigated Mr Ferguson’s enrolment status and concluded Mr Ferguson had not been enrolled at SCU after 7 December 2000. The Centrelink officer also noted Mr Ferguson was, in any event, overpaid the sum of $7,750.14 during the period he was enrolled because he was paid at the Masters/Doctorate course rate and not the Masters Qualifying course rate. However, the ARO submitted the debt should be waived due to administrative error. The ARO decided that the amount of the debt owed by Mr Ferguson should be varied to $27,204.09 in respect of the overpayments between 8 December 2000 and 14 July 2002. In addition, the ARO indicated that a debt had been raised in the amount of $6,663.24 for overpayments between 11 June 1999 and 6 December 1999. According to the ARO, Mr Ferguson’s total debt at that time was $32,668.51.
23. On 23 January 2006 Mr Ferguson asked for a reconsideration of the ARO’s decision. On 7 April 2006 another ARO reviewed Mr Ferguson’s debt. She decided that the decision to raise and recover an ABSTUDY debt in the amount of $27,204.09 was correct. The SSAT affirmed that decision on 18 August 2006.
24. Prior to this matter coming on for hearing before me, Centrelink informed Mr Ferguson that his debt had again been amended to $28,131.92. This was because Centrelink had paid SCU his enrolment fee of $1,298.62 to January 2001 and $933.22 of that enrolment fee was returned to Mr Ferguson on 11 October 2001.
THE LEGISLATIVE SCHEME
25. The Students Assistance Act 1973 (the Students Assistance Act) provides entitlement to financial support under the ABSTUDY scheme. Section 12C of the Students Assistance Act provides that a person is an eligible student for the purposes of Part 4A in relation to a year or part of the year if:
(a)the person is undertaking, or proposes to undertake, at an education institution in that year or that part of that year, a prescribed course of study or instruction; and
(b) …
(i)the person qualifies for a prescribed benefit under the ABSTUDY scheme in respect of that year or that part of that year…
26. The ABSTUDY scheme falls under the definition of Current Special Education Assistance Scheme (s 3). The details of the ABSTUDY scheme are not set out in the Student Assistance Act but rather appear in the ABSTUDY Policy Manual 2002 (the ABSTUDY Policy Manual). Section 335(1) of the Student Assistance Act provides:
(1) The Minister may prepare a written statement of the policy of the Commonwealth Government in relation to the administration of this Act and give a copy of the statement to:
(a) the Secretary; and
(c) the National Convener of the Social Security Appeals Tribunal.
Furthermore, when an officer is exercising powers under the Student Assistance Act, that officer must have regard to any statement of which a copy has been given to the Secretary.
27. For the purposes of determining this matter, I was provided with the ABSTUDY Policy Manual which, at paragraph 1.5.1.1 provides that:
The policy of ABSTUDY, set out in this manual known as the ABSTUDY Policy Manual, has the approval of the Minister for Education, Science and Training.
Furthermore, s 335(4) of Student Assistance Act provides that:
In exercising powers under this Act, the National Convener and the Social Security Appeals Tribunal must have regard to any statement a copy of which has been given to the National Convener …
28. Part 6 of Division 1 of the Student Assistance Act provides that overpayments arising under the Act and certain administrative schemes are debts recoverable by the Commonwealth. Section 38 of the Student Assistance Act provides, insofar as it is relevant, that a debt means a special educational assistance scheme overpayment. A special education assistance overpayment is defined in s 3 to mean an amount paid under a current special educational assistance scheme or a former special educational assistance scheme that should not have been paid. Section 39 of the Student Assistance Act provides that if a person has been paid an amount referred to under the definition of debt in s 38, the amount is a debt owed by the person to the Commonwealth.
29. Part 6 of Division 2 of the Student Assistance Act deals with the recovery of debts. Division 3, and in particular s 43 of the Student Assistance Act, gives the Secretary a discretion to write off the debt. Alternatively, s 43A gives the Secretary a discretion to waive the Commonwealth’s right to recover the whole or part of the debt in particular circumstances. The circumstances which may be relevant in this proceeding are set out in s 43B, which deals with waiver of debt arising from administrative error; and s 43F, which deals with waiver in special circumstances.
30. An applicant is obliged to notify the Department within 14 days of the happening of a prescribed event. Prescribed events are set out in Schedule 1 of the Student Assistance Regulations 2003 (the Regulations). Prescribed events include where the ABSTUDY recipient:
·does not enrol (101);
·does not begin the course within the first 3 weeks (102);
·has their enrolment cancelled (104); or
·discontinues the course (105).
Entitlement to ABSTUDY
31. Part 3 of the ABSTUDY Policy Manual sets out the general eligibility criteria for ABSTUDY assistance. The general eligibility criteria are:
·the student must be an Australian citizen;
·the student must be an Australian Aboriginal or Torres Strait Islander person;
·the student must be enrolled in an approved course; and
·the student must not be receiving or will not receive any other government assistance to study.
There was no issue about whether Mr Ferguson met the general eligibility criteria.
32. Paragraph 3.1.1.3 of the ABSTUDY Policy Manual describes what is meant by approved study. It provides that a student must be studying at an approved education institution and in an approved course.
33. Approved courses of study are set out in Chapter 4 of the ABSTUDY Policy Manual. Approved tertiary courses include a Masters Qualifying course (Schedule 2).
34. There was no dispute about the fact that Mr Ferguson was enrolled in an approved education institution which includes higher education institutions which attract Commonwealth funding. SCU is such an institution. Furthermore, Mr Ferguson was enrolled in the Masters Qualifying Program. There is no doubt that this program is an approved course. In fact, paragraph 4.3.3.11 describes Masters qualifying courses in the following way:
A Master's qualifying course is a year of full-time or part-time undergraduate study that is an alternative to the completion of an Honours year to enable entry to Masters or Doctorate study. The Masters Qualifying year is undertaken following the completion of an undergraduate pass degree, ie a degree without Honours, so that a student can receive assistance to complete an Honours year or a Masters Qualifying course, but not both.
35. It is important to understand that Mr Ferguson was never enrolled in a Masters Program. Mr Ferguson had not completed an Undergraduate Honours degree; therefore he was ineligible to enter into the Masters Program. It is for that reason that SCU accepted him into the Masters Qualifying Program, as is described in the letter of acceptance sent to Mr Ferguson dated 13 July 1999. That letter clearly stated he must complete the requirements for the Masters Qualifying Program no later than 12 July 2000. The letter also clearly stated it is only after completing the Masters Qualifying course of study, that he would become eligible for admission to the Masters Program. In fact, the letter also stated that he must submit a new application for admission to the Masters Program after completing the qualifying program.
36. The problem for Mr Ferguson is that in his claim for ABSTUDY, he described the course title in which he was enrolled as Master of Education. That was plainly incorrect. At the time of lodging the claim for ABSTUDY in November 1999, Mr Ferguson had completed a Bachelor of Arts (Education) Undergraduate Degree but he did not complete that degree with Honours. He was therefore required to complete the Masters Qualifying Program before being admitted to the Masters Program.
Approved Study
37. As is explained in paragraph 3.1.1.3 of the ABSTUDY Policy Manual, in order to qualify for ABSTUDY assistance, the student must be studying at an approved education institution and in an approved course. In other words, it is not sufficient for the student to be merely enrolled in an approved course at an approved education institution. That would not fulfil the eligibility requirements. A person must in fact participate in the course which has been approved.
38. In Mr Ferguson's case, he needed to participate in a program which required him to complete a course in research methods; to provide a detailed literature review; draft a research proposal; and complete a pilot study written up as a mini‑thesis. If Mr Ferguson participated in any of those activities, he could be said to have been studying in an approved course at an approved education institution at least for the periods during which he was enrolled for the Masters Qualifying Program.
39. There was no dispute that Mr Ferguson enrolled at SCU in the Masters Qualifying Program in July 1999. He signed an enrolment form and also an acceptance of the offer constituted by the University's letter of 13 July 1999. However, that is the only enrolment disclosed by Mr Ferguson's University records. That enrolment took Mr Ferguson through to 12 July 2000, which was the completion date for his Masters Qualifying Program. Although it is not clear whether Mr Ferguson was granted an extension of the completion date for his Masters Qualifying Program, SCU records confirm that Mr Ferguson's enrolment extended to the end of 2000. However, after that, the University confirmed that Mr Ferguson did not enrol in 2001 or 2002. In fact, although Centrelink paid for Mr Ferguson's enrolment for the 2001 year, that payment was subsequently refunded to Mr Ferguson by SCU because Mr Ferguson was not enrolled in that year.
40. Having established conclusively that Mr Ferguson was enrolled in an approved course of study at an approved education institution for the second semester of 1999, and through to December 2000, the next question I have to address is whether Mr Ferguson in fact studied during that period of enrolment. It requires me to examine whether Mr Ferguson completed or did any work in accordance with the study program established for his Masters Qualifying Program.
41. In his oral evidence Mr Ferguson said following his enrolment, he was doing research and writing. His research was based, he said, on a Federal Court action which he initiated against Deakin University. He claimed he had been discriminated against in his employment with Deakin University and he had, in addition to the Federal Court action, taken his complaint to the Equal Opportunity Commission. He said his proposed research was a case study looking at institutional racism. I asked Mr Ferguson if he could produce any evidence which would indicate that he was studying for the period of time he claimed to be enrolled at SCU. Mr Ferguson replied that:
A lot of the stuff that I was doing at the time was in the documentation that was about the Deakin University thing. As I was saying, it was in the letters that were being generated between myself and Deakin Uni and the Equal Opportunity and…
When asked for copies of the letters, Mr Ferguson said a lot of them had been taken into the Court documents and he did not have those. Mr Ferguson insisted that his Masters thesis was based on the discrimination he perceived as a consequence of his dispute with Deakin University. Mr Ferguson referred to his Masters Research proposal but, when asked whether he did anything other than that, he answered no, I don't think so.
42. Mr Ferguson said he always thought he was enrolled at SCU and he was always intending to study and go through and complete his Masters degree. The problem of course is that Mr Ferguson never became eligible to be admitted to the Masters Program for the reason that he did not complete the Masters Qualifying Program. Mr Ferguson was taken to his application for admission to the Masters Degree and in particular to the page which has the heading Honours Equivalents. The explanation under the heading on that page states that:
This page should be used by the relevant School Director of Post Graduate Studies and Research or College Director to make a case for Honours equivalents where an Honours year has not been undertaken.
Note: Honours equivalents may not need to be demonstrated in the case of applicants for the School of Education.
Then, immediately below that statement in handwriting is the following:
Completion of a detailed literature review & satisfactory completion of research i & ii of the school of edu, completion of a detailed research proposal & finally to undertake & complete a pilot study relevant to the thesis paradigm.
43. Despite the fact that the printed note above indicates that Honours equivalents may not need to be demonstrated in applications to the School of Education, quite clearly the handwritten comments made by the School Director of Post Graduate Studies and Research indicated Mr Ferguson needed to complete an Honours equivalent or Masters Qualifying Program. That of course is reflected in his letter of acceptance dated 13 July 1999.
44. Mr Ferguson was asked if he completed the literature review and he answered No. When asked if he passed that part of the course, Mr Ferguson said his understanding was that his work was being rolled over. He said he was a continuing student and was working through that stuff, as I was saying. Asked if he got a result for that part of the study for 1999, Mr Ferguson said he was not sure. However, Mr Ferguson's University record is unequivocal about his Masters Qualifying Program results. It clearly indicates that he was admitted to the Masters Qualifying Program in 1999. The results for semester two of 1999 regarding the qualifying project (which I understand to mean the requirements set out at points 1, 3 and 4 of the 13 July 1999 acceptance letter) record an assessment grade as withdrawn. Immediately beneath that are the results of his research enrichment units which appear to be the requirement set out at point 2 of the 13 July 1999 acceptance letter. In respect of both of the subjects (Enquiry I and Enquiry II), the assessment grade is fail. When asked about those research enrichment units, Mr Ferguson said he could not recall what happened to those. When asked whether there were any expectations of him from the University or his supervisor regarding his studies, Mr Ferguson said there were. When asked what they were he said that I'd be working through and doing my Masters, as I was saying.
45. I cannot accept what Mr Ferguson said about his studies at SCU. He gave the impression that he was studying for his Masters Degree. Quite clearly, that was never the case. As the acceptance letter of 13 July 1999 unequivocally states, Mr Ferguson was required to complete the requirements for the Masters Qualifying Program by no later than the completion date stated in that letter. After he completed that course of study he was required to submit a new application for admission to the Masters Program. Successful completion of the Masters Qualifying Program was a pre‑condition to his admission to the Masters Program. Mr Ferguson never completed the Masters Qualifying Program and therefore never became eligible to enrol in the Masters Program. Furthermore, there was no evidence before me that would indicate that the completion date for the Masters Qualifying Program was ever extended by SCU. In fact, when enquiries were made in 2001 as to whether Mr Ferguson was enrolled at SCU, the University categorically stated he was not.
46. Mr Ferguson suggested he had provided a report to SCU on the progress of his course of study on 16 November 2001. This is set out in a letter addressed to Mr Mick Martin. However, there are two things that can be said about that. The first is there is nothing in that report which corresponds with the pre‑requisites for completion of the Masters Qualifying Program. It does not contain a detailed literature review, research proposal or a pilot study written up as a mini‑thesis. Secondly the report was provided to Mr Martin in 2001, at a time when Mr Ferguson was not enrolled at SCU. It therefore cannot be said that the report of 16 November 2001 goes any way towards satisfying the study requirements for the Masters Qualifying Program. Similarly, Mr Ferguson's claims that he was conducting research into his Masters thesis on the back of his dispute with Deakin University and his complaint to the Equal Opportunity Commission cannot, reasonably, be regarded as satisfying any part of his required study for the Masters Qualifying Program.
47. After the hearing of this matter, when I realised that Centrelink's assessment of the debt owing to the Commonwealth was based on the fact that Mr Ferguson was entitled to ABSTUDY for 1999 and 2000 because he was enrolled in what Centrelink then understood to be the Masters Program, I held several Directions Hearings by telephone to alert Mr Ferguson to the fact that there may be a problem with his entitlement to ABSTUDY for the 1999 and 2000 years. I explained to Mr Ferguson the problem was both parties seemed to have proceeded under the misunderstanding that he was enrolled in the Masters Program. I pointed out to him the offer to study at SCU was in the Masters Qualifying Program and this had not been the subject of submissions at the hearing. I therefore invited Mr Ferguson to make any further submissions. Mr Ferguson provided further submissions in a letter dated 11 October 2007, which I have taken into consideration.
48. The problem Mr Ferguson now faces is the evidence points strongly to the fact that, although he was enrolled in the Masters Qualifying Program for the second semester of 1999 and for the year 2000, he did not undertake any study in that program. He did not complete the study units as required; nor did he complete any of the other requirements set out at points 1, 3 and 4 of his study program within the completion period. The maximum duration of the research program was said to be three semesters which, given he commenced on 12 July 1999, would in fact have ended in December 2000. As I have mentioned before, paragraph 3.1.1.3 of the ABSTUDY Policy Manual requires that a student must not only be enrolled in an approved course, he or she must in fact be studying at an approved education institution and in an approved course.
49. For reasons which are not clear to me, Mr Ferguson maintained he was enrolled in the Masters Program. That was clearly not the case. The program in which he was enrolled was set out in the letter from SCU dated 13 July 1999. Given that Mr Ferguson has a Bachelor of Arts degree, I have no doubt he understood the precise nature of the course in which he was enrolled and the pre‑requisites for completion. Furthermore, I have no doubt at all that Mr Ferguson understood he could not enrol in the Masters Program until such time as he had completed the Masters Qualifying Program. The only conclusion I can draw is that Mr Ferguson never qualified for ABSTUDY despite his enrolment at SCU in July 1999. He could not, on the evidence before me, be said to have undertaken any studies which were necessary to complete the Masters Qualifying Program.
Debt Recovery – Administrative Error
50. I am satisfied that all of the ABSTUDY payments received by Mr Ferguson fall under the definition of a debt as set out in s 38 (a) of the Student Assistance Act. The ABSTUDY Scheme is a current special educational assistance scheme (s 3) and Mr Ferguson received payments under that scheme, which should not have been paid to him. Therefore, those monies constitute a debt recoverable by the Commonwealth under s 39 of the Student Assistance Act.
51. Section 43B of the Student Assistance Act provides that the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received the payment or payments that gave rise to that proportion of the debt in good faith.
52. Although an ARO on 13 October 2005 identified an overpayment due to the fact that Mr Ferguson was paid at the Masters rate and not the Masters Qualifying rate, and recommended the overpaid amount be waived due to administrative error, I do not share the ARO's view about that portion of the debt or any other part of the debt. The problem is Mr Ferguson, for whatever reason, in his application for ABSTUDY claimed he was enrolled in a Master of Education Program. It is inescapable that the description given by Mr Ferguson was incorrect. He was enrolled in a Masters Qualifying Program. At the time of his application for ABSTUDY, there is no reason why the Centrelink officer who dealt with it should not have relied on the description of the course provided by Mr Ferguson. Because of the mis-description, it appeared that nobody at Centrelink, or anywhere else for that matter, paid careful attention to the nature of the course in which Mr Ferguson was enrolled at SCU. Nor was any enquiry made as to whether Mr Ferguson was in fact studying in the course for which he was enrolled. It appears that Centrelink accepted he was enrolled in the Masters Program and therefore no serious enquiry was undertaken into what studies Mr Ferguson undertook in the latter half of 1999 and all of 2000. It is therefore my view that it cannot be said the debt which has arisen as a consequence of overpayment of ABSTUDY entitlements was due solely to administrative error. Centrelink acted on the information provided by Mr Ferguson in his application form and therefore it must be said that the debt arose due, at least in part, to Mr Ferguson's mis-description of the course in which he was enrolled. It follows that the waiver provisions in s 43B of the Student Assistance Act do not apply in this case.
Waiver and Special Circumstances
53. Section 43F of the Student Assistance Act provides that the Secretary may waive the right to recover all or part of the debt in certain circumstances. However, the Secretary must be satisfied that the debt did not wholly or partly arise from the debtor or another person knowingly making a false statement or false representation. It is quite clear from SCU's letter of 13 July 1999 that the course for which Mr Ferguson's admission was approved was the Masters Qualifying Program. It was only upon completion of that course of study, that Mr Ferguson could submit a new application for admission to the Masters Program. It follows Mr Ferguson must have known that when he wrote Master of Education on his application form, his statement was false in the sense that it was incorrect. Therefore, the special circumstances waiver provisions in s 43F of the Student Assistance Act cannot be relied on by Mr Ferguson.
CONCLUSION
54. My opinion is that Mr Ferguson was not entitled to any ABSTUDY payments as a result of his enrolment at SCU in 1999. Although he was enrolled in an approved course at an approved education institution, he did not do any study in the approved course. It is not sufficient to merely be enrolled in a qualifying program at a qualifying institution to qualify for ABSTUDY; the applicant must also be studying in the approved course. The evidence clearly indicates Mr Ferguson never did study in the Masters Qualifying Program and, at all times, he held himself out to be enrolled in the Masters Program. Mr Ferguson’s work in conducting litigation with Deakin University and lodging a complaint with the Equal Opportunity Commission cannot be described as work required to be undertaken in the Masters Qualifying Program. Therefore, the only conclusion I can draw is that Mr Ferguson did not qualify for ABSTUDY payments by reason of his enrolment at SCU in the Masters Qualifying Program.
55. Neither of the waiver provisions in s 43B or s 43F of the Student Assistance Act applies to Mr Ferguson's case. Therefore, the decision of the SSAT made on 18 August 2006, should be set aside. I remit this matter to the Secretary for the purpose of calculating the total ABSTUDY payments made to Mr Ferguson as a consequence of his application received on 19 November 1999; and raising a debt for the entire sum paid to him as a consequence of the acceptance of his ABSTUDY claim by Centrelink.
I certify that the fifty‑five [55] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
Signed: Olympia Sarrinikolaou
Clerk
Date of Hearing 9 October 2007
Date of Decision 25 June 2008
Solicitor for the Applicant Self‑represented
Counsel for the Respondent Fiona McKenzie
Solicitor for the Respondent Cain Sibley, Minter Ellison
0
0
0