Francis and Secretary, Department of Education Science and Training
[2006] AATA 336
•10 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 336
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/519
GENERAL ADMINISTRATIVE DIVISION ) Re VICTORIA FRANCIS Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION SCIENCE AND TRAINING
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date10 April 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
……...[Sgd]…….
Member
CATCHWORDS
SOCIAL SECURITY – austudy – same standing – recognition of foreign qualification – s569 of Social Security Act discussed – decision affirmed.
Social Security (Administration) Act 1999 s234
Social Security Act 1991 s 568, 569
Student and Youth Assistance Act 1973Secretary, Department of Social Security v Murphy (FCA[1998] 8069),
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Secretary, Department of Education, Training and Youth Affairs v Lander [1996] FCA 1088,
Re Reference under section 11 of Ombudsman Act 1976, ex parte Director-General of Social Services (1979) 2 ALD 86
Layt v Secretary, Department of Family & Community Services [2003] FCA 317
Secretary, Department Family and Community Services and Wight [2002] AATA 142
Nair-Marshall v Secretary, Department of Family & Community Services [2005] FCA 1164
Van Wirdum and Secretary, Department of Family & Community Services [2004] AATA 239
Rodolico and Secretary, Department of Employment, Education AAT No 12521; (24 December 1997)
Secretary, Department of Employment, Education, Training and Youth Affairs and Newing (No. V97/374, AAT No. 12158, (27 August 1997)
Paterson and Secretary, Department of Employment, Education and Training (1993) 30 ALD 755
Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 Secretary, Department of Social Security v Ekis (1998) 52 ALD 246REASONS FOR DECISION
10 April 2006 Mr SC Fisher, Member Introduction and background
1. Ms Victoria Francis has enrolled in the degree of Bachelor of Medicine, Bachelor of Surgery at Griffith University. Ms Francis applied for Austudy through Centrelink on 15 February 2005.
2. In outline form, the background to this appeal is as follows:
A.Ms Victoria Francis holds the Degree of Bachelor of Arts (Honours) (University of Queensland).
B.Ms Francis is an Australian citizen.
C.On 16 July 2004, Ms Francis was awarded the degree of Master of Science with Merit in Human Osteology and Paleopathology from the University of Bradford, United Kingdom.
D.In 2005, Ms Francis enrolled in a Bachelor of Medicine/Bachelor of Surgery degree at Griffith University.
E.Ms Francis applied for Austudy on 15 February 2005 and a delegate of the Respondent refused this application on the 19 February 2005.
F.On or about 8 March 2005, the original decision maker affirmed the decision to reject Ms Francis' claim for Austudy.
G.On 24 March 2005, an Authorised Review Officer affirmed the 19 February and 8 March decisions.
H.Ms Francis appealed to the Social Security Appeals Tribunal on 16 May 2005.
I.On 12 July 2005 the Social Security Appeals Tribunal affirmed the decision below.
J.On 10 August 2005, Ms Francis appealed to this Tribunal.
Jurisdiction
3. In a procedural sense, the Tribunal has jurisdiction in this appeal by virtue of Part 4, Division 5 of the Social Security (Administration) Act 1999 (“the Administration Act”). In a substantive sense, the merits of this appeal are governed by the Social Security Act 1991 (“the Act”).
The Decision under Review
4. The decision under review is a decision made by the Social Security Appeals Tribunal on 4 July 2005 that Ms Francis is not eligible to be paid Austudy because she is the holder of a degree at Masters level, and so is disqualified from satisfying the activity test because of section 569(2)(b)(ii) of the Act.
The Role of the Tribunal
5. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] FCA 809. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
The Material Before the Tribunal
6. The following documentary evidence was before the Tribunal:
Exhibit 1 Affidavit of Victoria Christabel Mary Francis sworn 16 October 2005.
Exhibit 2Affidavit of Jonathan Prangnell sworn 12 October 2005.
Exhibit 3Overseas Qualifications Assessment Advice dated 30 November 2005 issued by the Department of Employment and Training, State of Queensland.
Exhibit 4Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 5Instruments of delegation of powers under section 234 of the Administration Act, comprising Instrument 1 of 2005, Instrument 2 of 2005 and Commonwealth Services Delivery Agency Instrument No 9 of 2005.
7. The Applicant was represented by Mr Julian Wagner of counsel who appeared pro bono. Exhibits 1, 2 and 3 were lodged on behalf of the Applicant. The Applicant’s counsel provided a Statement of Facts and Contentions to the Tribunal and Further Submissions on 16 December 2005.
8. The Respondent lodged documents T1 to T 15 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 4. Exhibits 4 and 5 were lodged on behalf of the Respondent.
9. The Respondent was represented by Mr James Howard a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.
10. Both parties lodged an outline of submissions with the Tribunal after the hearing in accordance with its direction to that effect. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence
11. The Respondent did not call any evidence.
12. The evidence in chief of the Applicant (Exhibit 1) was to the following effect:
A.The Applicant described her educational history.
B.The Applicant described how there is no career path in Australia for people with forensic archaeological qualifications.
C.The Applicant said that she wanted to study Medicine in Australia in order to qualify for and build a career for herself. The Applicant said that she accepted a Commonwealth Government bonded placement and commenced her medical studies at Griffith University in January 2005.
D.The Applicant thought that she would be eligible for Austudy. The Applicant emphasised that she did not receive any Austudy for any of her previous studies. The Applicant said that she received no financial assistance from the Australian Government or the United Kingdom Government when undertaking her Master of Science degree at the University of Bradford.
E.The Applicant said that she had been informed by staff at Griffith University that she should devote most her time to her study, meaning that she should do as little outside activity (including paid work) as is possible in order to perform well at her studies.
F.The Applicant said that she is a highly industrious and studious person, but that she is experiencing financial stress leading her to think of stopping her studies altogether and either going back on to the dole or obtaining a full-time job in an otherwise menial occupation. (Exhibit 1, page 5)
13. The evidence of Dr Jonathan Prangnell, Director of the University of Queensland Archaeological Services Unit, School of Social Science, University of Queensland (who gave evidence by telephone), was to the following effect:
A.The Applicant's Master of Science degree does not qualify the Applicant for work in the field of general archaeology.
B.There are no positions for forensic archaeology in Australian open to the Applicant as this field of expertise is not an established career path in Australia.
C.There was no Masters degree in Australia that is of the same standing or equivalent to the Master of Science with Merit in Human Osteology and Paleopathology from the University of Bradford, United Kingdom which has been awarded to the Applicant.
D.The degree of Master of Science with Merit in Human Osteology and Paleopathology from the University of Bradford equipped the Applicant with knowledge for forensic expertise in the United Kingdom and the United States of America, but not Australia.
14. At the hearing, the Tribunal directed the Respondent to provide copies of the delegations concerning the exercise of administrative power in relation to section 569 of the Act to the Tribunal and the Applicant. Pursuant to that direction, the Respondent provided copies of instrument of delegation of powers under section 234 of the Administration Act, comprising Instrument 1 of 2005, Instrument 2 of 2005, Commonwealth Services Delivery Agency Instrument No 9 of 2005. The Tribunal invited the parties to make submissions on the effect of these instruments and on the case as a whole, which the Applicant did on 16 December 2005 and the Respondent did on 27 December 2005. The Tribunal had regard to these submissions in making its decision.
Issue
15. The issue in this case in is the correctness of the decision under review, namely a decision made by the Social Security Appeals Tribunal on 4 July 2005 that Ms Francis is not eligible to be paid Austudy because she is the holder of a degree at Masters level, and so is disqualified from satisfying the activity test because of section 569(2)(b)(ii) of the Act.
Applicant’s Submissions
16. The submissions of the Applicant were to the following effect:
A.Section 569(2)(b)(ii) of the Social Security Act 1991, requires the Respondent to form an opinion as to whether a particular qualification from a foreign institution is of the “same standing” as a degree of Master or Doctor at an Australian educational institution.
B.The words same “standing” requires an assessment by the Respondent as to whether there is an equivalent Masters or Doctorate in the same field of forensic archaeology in Australia.
C. There is no equivalent Australian Masters or Doctorate.
D.Accordingly, the Respondent could and cannot properly form an opinion.
E.If, as determined by the SSAT, the phrase “of the same standing” refers to the academic standing of degrees of the same name, there was and is no Australian academic equivalent to the Master of Science in Human Osteology & Palaeopathology which the Applicant obtained from the University of Bradford.
F.It is not enough for the Respondent to blandly form an opinion that the particular Masters awarded to the Applicant is simply a “Master of Science” degree and that the Applicant is denied Austudy because there are similarly titled “Master of Science” degrees at Australian institutions.
G.Nor is it sufficient to assess and compare the standing of the foreign University or institution with an Australian educational institution and/or vice versa.
H.Section 569(2)(b)(ii) of the Social Security Act 1991 requires an assessment of the content and substance of a foreign qualification as distinct from mere form or nomenclature.
I.In reaching an opinion as to the standing of a Masters of Science, a reasonable person would enquire as to the particular area or field of expertise within the bland and all embracing expression of “Science”.
J.Accordingly, in order to form an adequate opinion, the Respondent must academically assess the exact course, subject and particular field of Science studied by the Applicant.
K.The Respondent must then compare the Applicant’s particular Master of Science concerning forensic archaeology with any same such Master of Science from an Australian institute.
L.If there is no same such Master of Science in forensic archaeology in Australia then the Respondent can not legitimately form any opinion as to same standing as required by section 569(2)(b)(ii) of the Act.
M.The expression “standing” is not defined in the Act. The Macquarie Dictionary (1990), amongst other things, defines standing to include “1. position or status, as to rank, credit, reputation.....”
N.The expression “same” is defined in the Macquarie Dictionary (1990) to mean, inter alia:
“…1. identical with what is about to be or has just been mentioned: the very same person; 2 being one or identical, though having different names, aspects, etc: these are one and the same thing; 3 agreeing in kind, amount etc: corresponding: two boxes of the same dimensions; 4. unchanged in character, condition, etc – pron; 5 the same person or thing…”
O.On any such meanings, the same (and) standing, the Respondent cannot reasonably reach an opinion in terms of section 569(2)(b)(ii) of the Act as there is no identical, or one and the same, Masters of Science of the same status, reputation or character in Australia.
P.Further or in the alternative, the expression “same standing” is wide enough to also include a consideration by the Respondent of the employment prospects flowing from a degree in addition to the academic standing of the degree.
Q.Further or in the alternative, section 569(2)(b)(ii) of the Act requires the Secretary himself to personally form or reach an opinion as to the standing of the Applicant’s Masters.
R.This is evident from the literal wording of section 569(2)(b)(ii) of the Act namely “..in the Secretary’s opinion.”
S.This is contextually supported when one compares the wording of section 569(2)(b)(ii) with section 569(2)(b)(i) as well as the other limbs of section 569(2) of the Act.
T.If the Secretary’s personal opinion was not required by Parliament then the wording would not have been included.
U.Parliament did not intend that such an opinion could be delegated.
V.Such an opinion cannot be delegated at common law.
W.The Secretary himself has not reached such an opinion but rather only Centrelink officers.
X.On one or all of the above bases it is submitted that the Tribunal must set aside the decision to reject the Applicant’s claim for Austudy.
Respondent’s Submissions
17. The submissions of the Respondent were these.
18. The Respondent contends that the applicant has a qualification of equivalent standing. The Respondent further contends that arguments based on employment prospects, particularly matters of employment preference, are not relevant considerations under the Act. There is no discretion for the Secretary to decide whether a qualification is “of the same standing” when based on the merit (or otherwise) of various jobs.
19. The Respondent contends that matters taken into account on whether degrees are of a comparable standing include, whether the foreign course contains the equivalent number of subjects, demands a similar amount of hours of class attendance or research, or whether the qualification comes from an institution of particularly poor repute. These are matters which are not assessed by Centrelink. Rather, this specialist role is prescribed to National Office Of SSkills Register (NOOSR), who, may or may not find that the Masters Degree is of the same standard under section 569(2)(b)(ii).
20. Miss Francis has been advised to approach NOOSR for a determination on standing of her Masters Degree. Her failure to provide any objective proof, in terms of a determination by an Australian educational authority, that the degree is not of the equivalent standing, suggests that the degree is of equivalent standing. In the absence of any compelling evidence, the Respondent submits that Centrelink’s determination under section 569 is the only reasonable decision to reach.
21. The Respondent contends that the Secretary has no discretion to decide the merits of degrees on a case-by-case basis. Rather, the Secretary must have sole regard to a determination by an educational authority as to whether the degree has the same standing.
22. In the Federal Court decision of Secretary, Department of Education, Training and Youth Affairs v Lander [1996] FCA 1088, Burchett, Moore and Sundberg JJ considered the issue of accreditation of coursework degrees. In that case, they held that where a course has been accredited at a particular level by a duly authorised accrediting institution, it is not appropriate for a body such as the AAT or Federal Court to go behind the accreditation to see if that assessment was correctly made.
23. The Respondent contends that, as the University of Bradford, United Kingdom is satisfied that Miss Francis has completed the requirements for the Master of Science Degree, and that no NOOSR determination exists to the contrary, it is not appropriate for the AAT to examine the issue of the award further. It is a simple fact that Miss Francis is the holder of a Masters degree of an equivalent standard.
24. Therefore, as Miss Francis is the holder of a Masters degree, and as that degree is of an equivalent standing and has been awarded by a duly authorised accrediting institution, the Respondent contends that Miss Francis is not eligible to receive Austudy, as she cannot satisfy the activity test contained in section 569 of the Act.
25. Miss Francis has previously submitted that she ought to have the benefit of a beneficial interpretation of the Act, primarily because she is studying a degree of particular importance and because she has not received an equivalent payment in the past. Accordingly, a beneficial discretion should be used to address the unfairness of the situation. The Respondent contends that the above are irrelevant considerations and that there is no discretion to find an individual determination favourable to Miss Francis.
26. Centrelink is required by law to treat Miss Francis in exactly the same way as anyone else who claims Austudy, regardless of the degree they are undertaking or their background and previous benefit history.
27. The Respondent contends that the SSAT’s view is the correct one. The legislation is specific and does not allow discretion to ignore previous qualifications, regardless of a person’s circumstances.
28. Therefore, the Respondent submits that Miss Francis is not undertaking qualifying study, and thus cannot satisfy the eligibility criteria for Pension Education Supplement (PES) as contained in the Act.
29. The applicant has submitted, in paragraphs (xviii) to (xxiii) of the applicant’s statement of facts and contentions, that any decision reached by Centrelink in this matter is not valid, as it has not been made by the relevant Secretary, but by an employee.
30. Section 234 of the Social Security (Administration) Act 1999 deals with the delegation of the Secretary’s powers. Section 234(2) reads, relevantly:
“234(2) Subject to subsection (3), the Secretary may, in writing and in accordance with service arrangements, delegate to the CEO or an employee of the Agency all or any of the powers of the Secretary under the social security law.”
31. The delegation of powers of the Secretary of a Department, to an officer of a Department or Agency, has been considered in a variety of cases.
32. Brennan J (as he then was), acting in his former capacity as president of the Administrative Appeals Tribunal, examined the exercise of delegated powers in an advisory opinion, entitled Re Reference under section 11 of Ombudsman Act 1976, ex parte Director-General of Social Services (1979) 2 ALD 86.
33. Brennan J noted:
“But where the relevant power is delegable and has been delegated, the delegate may – without further authorisation – act in effective exercise of the power. His acts are not treated as acts vicariously done by the authority. He is not an agent to exercise the authority’s power; he may validly exercise the power vested in him.” (at 94)
34. The Respondent submits that, as per section 234 of the Administration Act, the Secretary’s powers have been properly delegated to employees of Centrelink (being the Commonwealth Service Delivery Agency). If required, the Respondent can provide copies of the properly approved delegations.
35. Accordingly, the Original Decision Maker did have the authority to reach the decision to consider, and then reject Miss Francis’ claim for Austudy, on the basis that she had already been awarded a qualification at a foreign institution that is, in the [delegate’s] opinion, of the same standing as a degree of Master or Doctor at an [Australian] educational institution.
36. The Respondent further submitted that the phrase “same standing” must be read in conjunction with the entirety of section 569 of the Social Security Act 1991.
37. Section 569 requires a delegate of the Secretary to simply form an opinion as to the level of a degree at an educational institution. As submitted by the Respondent at the hearing on 30 November 2005, the section does not require the Secretary to examine the minutiae of the degree and its varied subjects or disciplines – it simply requires the delegate to ascertain whether or not the degree is of a particular standard or level. That is typically done by ascertaining the standing of the institution – in this case, the University of Bradford in the Uniting Kingdom. This interpretation is consistent with the requirement in section 569(2)(b)(i) of the Act – it is sufficient that a person has a degree of Master or Doctor from an Australian institution, and no further investigation as to the composition of the degree is necessary.
38. The Respondent submits that any reading other than the above is forced and, in the circumstances, impractical in terms of public administration.
Findings of Fact
39. Based upon the evidence before it, the Tribunal makes the following findings of fact:
A.Ms Victoria Francis holds the Degree of Bachelor of Arts (Honours) (University of Queensland).
B.Ms Francis is an Australian citizen.
C.On 16 July 2004, Ms Francis was awarded the degree of Master of Science with Merit in Human Osteology and Paleopathology from the University of Bradford, United Kingdom.
D.The University of Bradford, United Kingdom, is a "foreign institution" for the purposes of section 569(2)(b)(ii) of the Social Security Act 1991.
E.In 2005, Ms Francis enrolled in a Bachelor of Medicine/Bachelor of Surgery degree at Griffith University.
F.Ms Francis applied for Austudy on 15 February 2005 and a delegate of the Respondent refused this application on 19 February 2005.
G.On or about 8 March 2005, the original decision maker affirmed the decision to reject Ms Francis' claim for Austudy.
H.On 24 March 2005, an Authorised Review Officer affirmed the 19 February 2005 and 8 March 2005 decisions.
I.Ms Francis appealed to the Social Security Appeals Tribunal on 16 May 2005.
J.On 12 July 2005 the Social Security Appeals Tribunal affirmed the decision below.
K.On 10 August 2005, Ms Francis appealed to this Tribunal.
L.An Overseas Qualifications Assessment Advice dated 30 November 2005 issued by the Department of Employment and Training, State of Queensland acted upon advice provided by the National Office of Overseas Skills Recognition (NOOSR) in relation to qualifications from the United Kingdom, and determined that the degree of Master of Science with Merit in Human Osteology and Paleopathology is assessed as comparable to the educational level of an Australian Masters Degree.
The Legislation
40. Key legislative provisions relevant to this appeal are as follows:
“568 Qualification for austudy payment—general rule
Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:
(a) the person satisfies the activity test (see Subdivision B); and
(b) the person is of austudy age (see Subdivision C); and
(c) the person is an Australian resident.
Note: Division 2 sets out situations in which an austudy payment is not payable even if the person qualifies for it.
569 Activity test
569(1) Subject to subsection (2), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is undertaking qualifying study (see section 569A).
Persons who do not satisfy the activity test
569(2) A person cannot be taken to satisfy the activity test if the person:
(a)is a new apprentice; or
(b) has completed a course for:
(i)a degree of Master or Doctor at an educational institution; or
(ii)a qualification at a foreign institution that is, in the Secretary’s opinion, of the same standing as a degree of Master or Doctor at an educational institution.
Note: For educational institution see subsection 23(1).”
Tribunal’s Reasons
41. The relevant legislation is contained in the Social Security Act 1991 (“the Act”) and the Student Assistance Act 1973. The legislative scheme underpinning the payment of Austudy has been considered in decisions of the Federal Court of Australia in Layt v Secretary, Department of Family & Community Services[2003] FCA 317 (“Layt”) and of the Administrative Appeals Tribunal in Secretary, Department Family and Community Services and Wight [2002] AATA 142 (“Wight”). By analogy with Nair-Marshall v Secretary, Department of Family & Community Services [2005] FCA 1164 at [24] the question whether the Applicant has completed a course of study at the level of Master or Doctor at an educational institution is a question of fact.
42. The Applicant contested the delegated powers of the relevant Centrelink officers who determined her application for Austudy within Centrelink. Exhibit 5 (Instruments of delegation of powers under section 234 of the Administration Act, comprising Instrument 1 of 2005, Instrument 2 of 2005 and Commonwealth Services Delivery Agency Instrument No 9 of 2005) lodged on behalf of the Respondent indicates that powers under section 569 of the Act may be exercised by a person holding the position of Centrelink 2 level (a subset of Employment Category 12) at any Centrelink Customer Services Centre. The Applicant did not contend that the relevant decision-makers within Centrelink were not appropriately classified in view of these instruments of delegation. In the end, the contentions of the Applicant directed towards whether the relevant Centrelink officers who made the decision adversely to the interests of the Applicant acted within or outside power fall away in light of the information disclosed in Exhibit 5.
43. Coming back to the Austudy eligibility criteria, if a person wants to be qualified to be granted and paid Austudy (subject to income and assets tests being satisfied), that person must satisfy the “activity test” under section 568 of the Act. Under section 569(1) a person will satisfy that test if he or she is “undertaking qualifying study”. section 569(2) disqualifies certain classes of people from being able to satisfy the activity test under section 568 if they have "completed a course for... (ii) a qualification at a foreign institution that is, in the secretary's opinion, of the same standing as a degree of Master or Doctor at an educational institution". In turn, educational institution is defined in section 23(1) of the Act.
44. The parties were apart on the issue of whether the degree of Master of Science granted by the University of Bradford, United Kingdom, was of the same standing as a degree of Master of an Australian educational institution. In essence, the Applicant contended that the Secretary of the Respondent could not reasonably form the opinion that the degree of Master of Science of the University of Bradford, United Kingdom, was of the same standing as the degree of Master of an Australian educational institution. The basis for this contention was because there was no equivalent Masters or Doctorate offered by an Australian educational institution in the field of forensic archaeology (as deposed to by Dr Jonathan Prangnell in Exhibit 2), therefore the Respondent could not form the opinion that the Master of Science of the University of Bradford, United Kingdom, was of the same standing as the degree of Master of an Australian educational institution.
45. In opposition, the Respondent contended that it was the standing of the institution and the nomenclature of the degree in question which was the basis for the formation of the requisite opinion for the purposes of section 569(2)(b)(ii) of the Act.
46. The Tribunal noted that the contention of the Applicant that it was for the Secretary to form the requisite opinion for the purposes of section 569(2)(b)(ii) of the Act, there had to be a degree at the level of Masters or Doctorate offered by an Australian educational institution in order for the comparison of equivalency expressed in the notion of "same standing" within section 569(2)(b)(ii) of the Act. Because there was evidence before the Tribunal that there was no equivalent Masters or Doctorate in the field of forensic archaeology offered by an Australian educational institution, therefore there was no basis for the determination of equivalency in order to disqualify the Applicant from satisfying the activity test under the combined operation of sections 568 and 569.
47. The Tribunal refers to Secretary, Department of Education, Training and Youth Affairs v Lander[1996] FCA 1088 at page 6, in which the Federal Court held that when a course has been accredited at a particular level, a decision maker should not set about evaluating whether the course has been appropriately accredited. Landeris authority for the principle that that where a course has been accredited at a particular level by a duly authorised accrediting institution, then it is not permissible to undertake the task of assessing whether that accreditation was appropriately made (see Wight at para [34]). In other words, it is not open to this Tribunal to “second guess” accreditation decisions made by academic institutions. While Landerinvolved the issue whether the applicant in that case qualified for Austudy benefits while enrolled in the Master of Arts (Psychology) degree at the University of Sydney, the Tribunal is of the opinion that the same reasoning applies to a comparison between a degree of Master or Doctorate offered by a foreign educational institution and an Australian educational institution.
48. In any case, there is an established administrative mechanism already in place to assist decision-makers (including this Tribunal) to make decisions involving the assessment of overseas academic and occupational qualifications. The Tribunal considered the Overseas Qualifications Assessment Advice dated 30 November 2005 issued by the Department of Employment and Training, State of Queensland (Exhibit 3, lodged on behalf of the Applicant). The effect of this document is that based on the advice provided by the National Office of Overseas Skills Recognition (NOOSR) relating to qualifications from the United Kingdom, the degree of Master of Science with Merit in Human Osteology and Paleopathology is assessed as comparable to the educational level of an Australian Masters Degree. The whole object of the process for NOOSR to make administrative decisions concerning the equivalency of overseas educational qualifications with those offered by Australian educational institutions is to remove "second guessing", and to provide a national benchmark and framework for the assessment of (and if necessary according mutual recognition to) educational and occupational qualifications on a cross-border basis. The Applicant did not contend that NOOSR had erred in making its determination of equivalency or comparable standing, nor that the Department of Employment and Training, State of Queensland had erred in issuing its Overseas Qualifications Assessment Advice on 30 November 2005 acting on advice provided by NOOSR.
49. The Tribunal noted that the essential issue is whether the degree of Master of Science with Merit in Human Osteology and Paleopathology held by the Applicant is assessed properly as comparable to the educational level of an Australian Masters degree on the basis that it satisfies the "same standing" test within section 569(2)(b)(ii) of the Act. The respective contentions of the parties have been identified above. To summarise, the contention of the Applicant about the operation of the "same standing" test rested on a substratum of an absence of an Australian comparator or referent or benchmark against which to apply the "same standing" test. This was contradicted by the Respondent on the basis that such a comparison was unnecessary, as was an inquiry relating to the minutiae of the Masters degree in question. All that was required is that the qualification of a foreign educational institution is of the same standing as the degree of Master or Doctor of an Australian educational institution.
50. Neither party was able to point to an authoritative interpretation of "same standing" within section 569(2)(b)(ii) of the Act. The Applicant cited Van Wirdum and Secretary, Department of Family & Community Services [2004] AATA 239 where the expression "same standing" within section 1061PB(2) was referred to but not elucidated or exegeted in any depth.[1] The Tribunal noted that the same phrase was referred to in its earlier decisions in Rodolico and Secretary, Department of Employment, Education (AAT No 12521; 24 December 1997) and Secretary, Department of Employment, Education, Training and Youth Affairs and Newing (No. V97/374, AAT No. 12158, 27 August 1997) and Paterson and Secretary, Department of Employment, Education and Training (1993) 30 ALD 755 which considered 41 of the AUSTUDY Regulations made under the Student and Youth Assistance Act 1973, but again there was no exegesis of this expression. The Tribunal approached the matter from the standpoint of res integra or res nova.
[1] “Same standing” has been referred to in a migration context (Holthower [2001] MRTA 306), a civil procedure context (Hoggett v Lowis[2004] QDC 508), an industrial relations context (Tapiata and Olten Pty Ltd [2000] WAIRComm 69), a criminal procedure context (Bollag v The Attorney-General of the Commonwealth of Australia & Anor [1997] 1146 FCA), a criminal assets property confiscation context (Re Westpac Banking Corporation & Ors [2001] WASC 365) and in a workers’ compensation context (Ilian and Comcare [2006] AATA 148 and Thompson and Comcare [2002] AATA 733), to give but some very selective illustrations. In none of these cases was the phrase "same standing" the subject of close consideration in such a way as to eliminate the issue before the Tribunal.
51. According to The Macquarie Concise Dictionary (3rd Edition, The Macquarie Library Pty Ltd, Sydney, 1998 – 2000), one of the meanings of "standing" is "position or status, as to rank, credit, reputation, etc". Similarly, according to the Concise Oxford English Dictionary (11th Edition, CD-ROM version), one of the meanings of "standing" is "position, status or reputation". Clearly, the common denominator between these two authoritative definitions is that "standing" connotes position, rank or status (or more simply, position or status). Taking into account that "standing" is embedded in section 569(2)(b)(ii) of the Act, and reading section 569 in its entirety and not just atomistically (see Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 at 283 per Gibbs J and Secretary, Department of Social Security v Ekis (1998) 52 ALD 246 at 249), “same standing" requires a qualification of a foreign educational institution to be of the same position, status or rank as a degree of Master or Doctor of an Australian educational institution. What section 569(2)(b)(ii) is attempting to achieve is to document a mensurable method of determining equivalence between foreign and Australian academic qualifications. This provision does not countenance an inquiry into the minutiae of the academic qualifications being compared, and indeed this is countermanded by the reasoning in Lander.
52. In this case, the Tribunal is satisfied that the degree of Master of Science with Merit in Human Osteology and Paleopathology held by the Applicant is of the same position, status or rank as a degree of Master or Doctor of an Australian educational institution. It is unnecessary for decision-makers (including this Tribunal) to be sidetracked by the necessity to make decisions whether comparable courses of study exist between any two universities in a cross-border setting. All that section 569(2)(b)(ii) requires is the identification of comparable or equivalent Master or Doctorate qualifications between an Australian educational institution and a foreign educational institution.
53. The Tribunal is of the view that, based on evidence before it, the degree of Master of Science with Merit in Human Osteology and Paleopathology held by the Applicant is of the same standing as a degree of Master of an Australian educational institution.
54. The Tribunal acknowledges that the Applicant will be disappointed by this decision and that it has financial repercussions for her medical studies and personal situation in life (including the attainment of her professional goals). Nevertheless, the Tribunal considers that section 569(2)(b)(ii) permits no other decision to be made in the circumstances of the Applicant if it is to discharge its mandate of providing administrative justice according to law.
Tribunal’s Conclusion
55. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct or preferable decision is that the degree of Master of Science with Merit in Human Osteology and Paleopathology held by the Applicant is of the same standing as a degree of Master of an Australian educational institution. Accordingly, the Applicant is not qualified to be paid Austudy within sections 568 and 569 of the Act as the Applicant cannot satisfy the activity test.
Tribunal’s Order
56. The Tribunal decides to affirm the decision under review.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Member SC Fisher
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 30 November 2005
Last submission received 27 December 2005
Date of Decision 10 April 2006
For the Applicant Mr J Wagner of Counsel (pro bono)
For the Respondent Mr J Howard, Departmental Advocate
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