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

[2021] AATA 282

Fonseka and Secretary, Department of Social Services (Social services second review) [2021] AATA 282 (11 January 2021)

Division:GENERAL DIVISION

File Number:          2020/4485

Re:Chintha Fonseka

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr A Maryniak QC, Member

Date:11 January 2021

Date of written reasons:        17 February 2021

Place:Melbourne

For the reasons given orally at the conclusion of the hearing if this matter, the Tribunal affirms the decision under review.

[sgd]........................................................................

Mr A Maryniak QC, Member

Catchwords

SOCIAL SECURITY – Austudy payment – debt – not a full-time student – no qualification for payment – activity test – overpayment – recoverable debt – oral decision – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Mr A Maryniak QC, Member

17 February 2021

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for that decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

I certify that the following 9 (nine) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

......[sgd]............................................................

Associate

Dated: 17 February 2021

Date of hearing:	11 January 2021
The Applicant:	By telephone
Advocate for the Respondent:	Brian Sparkes
Solicitors for the Respondent:	Services Australia

ANNEXURE A

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. MEMBER: In this matter, the Applicant seeks a review of the decision of this Tribunal on 10 June 2020, which affirmed a decision made by an Authorised Review Officer of the Respondent on 29 February 2020. It was determined that the Applicant had been overpaid Austudy in the amount of $3772.31 due to an absence of qualification for that allowance during a period. The relevant debt period is 16 June 2018 to 12 September 2018.

2. The Tribunal has considered the documentary evidence lodged by the parties together with the oral evidence of the Applicant and the submissions of the parties, both written and oral.

3. The Tribunal is to determine whether the Applicant was overpaid; whether such overpayment constituted illegally recoverable debt; and whether all or part of such debt should be written off or waived.

4. There is documentary evidence before the Tribunal which clearly establishes that

   a) the Applicant was not enrolled in any subjects for the period 26 February 2018 to 15 June 2018, known as ‘session one’; and

   b) the Applicant was granted a leave of absence for session two, being the period of 9 July 2018 to 26 October 2018.

   Such evidence is within the T-documents (T3) and summarised in Attachment A to the Respondent’s Statement of Issues, Facts and Contentions dated 7 December 2020.

5. Whilst there is within the Applicant’s evidence, allegations of conversations with officers of Centrelink, on balance, the Tribunal is of the view that the documentary evidence before it has greater weight and prevails over any assertions as to conversations. Hence, such allegations are not made out.

6. In the circumstances, the evidence, on balance, establishes that the activity test under section 568 of the Social Security Act1991 is not satisfied.

7. Section 569 and 569A of the Act provide that a person satisfies the activity test if they are undertaking qualifying study where a person is enrolled in an approved course of education at an educational institution as either a full-time or concessional load student in respect of that course. Further, section 569C provides that a person is a full-time student in respect of a course for a particular study period if that person is undertaking at least three quarters of the normal study of the course for that period. A normal study load is further defined in section 569E of the Social Security Act1991.

8. The Tribunal finds there is clearly a debt to the Commonwealth where there was no qualification for Austudy during the period, and that debt is to be a debt due under section 1223 of the Social Security Act1991. That amount is therefore a recoverable debt. There is nothing before the Tribunal to suggest that the debt should be written off pursuant to section 1236 of the Social Security Act1991. There is also nothing to support a waiver in the form of an administrative error waiver under section 1237A, nor is there evidence to satisfy a special circumstances waiver under section 1237AAD of the Social Security (Administration) Act1999.

9. In light of the evidence and the findings of this Tribunal, the correct and preferable decision is the one made by this Tribunal as earlier constituted. Therefore, this Tribunal affirms the decision made on 10 June 2020.