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

[2019] AATA 674

Hewawasam Revulge and Secretary, Department of Social Services (Social services second review) [2019] AATA 674 (17 January 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7025

Re:Mr Kamal Kithsiri Karundasa Hewawasam Revulge

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms Anna Burke AO, Member

Date:17 January 2019  

Date of written reasons:        15 February 2019

Place:Melbourne

For the reasons provided orally during the hearing, the Tribunal dismissed the matter as it had no reasonable prospects of success.

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Ms Anna Burke AO, Member

SOCIAL SERVICES – whether applicant entitled to Austudy payment – whether doctoral degree at Queensland University of Technology an approved course – whether incorrect advice provided by Centrelink – no reasonable prospects of success – interlocutory application granted - matter dismissed

Legislation

Administrative Appeals Tribunal Act 1975

Social Security Act 1991

Social Security (Administration) Act 1999

Student Assistance (Education Institutions and Courses) Determination 2009

WRITTEN REASONS FOR DECISION

Ms Anna Burke AO, Member

15 February 2019

INTRODUCTION

1. Mr Revulge (the Applicant) was seeking a second tier review of the decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (Tier 1) on 30 October 2018 to reject his claim for Austudy payments. The Secretary of the Department of Social Services (the Respondent) sought an order to dismiss the application.

2. The application was heard via telephone on 17 January 2019. Mr Revulge was self-represented. Ms Alisa Bramley, a lawyer in the Freedom of Information and Litigation Team, Department of Human Services, appeared for the Respondent.

3. The Tribunal provided an oral decision at the hearing, dismissing the decision under review as it had no reasonable prospects of success. Mr Revulge subsequently requested written reasons for the decision in accordance with s 43(2A) of the Administrative Appeals Tribunal Act 1975, (The AAT Act) and these are those reasons.

   BACKGROUND

4. On 31 December 2015 Mr Revulge lodged an online application for Austudy payments with Centrelink, indicating he had enrolled full-time in a Doctor of Philosophy degree at the Queensland University of Technology, commencing on 22 February 2016.

5. On 21 December 2016 Centrelink issued Mr Revulge with a notice rejecting his claim for Austudy, stating:

   Rejection of your claim for Austudy… As you are intending to, or are currently undertaking a Doctorate… you are ineligible for Austudy. As a result, a decision has been made to reject your Austudy claim…

6. On 1 August 2018 a departmental Authorised Review Officer (ARO) reviewed and affirmed the decision to refuse Mr Revulge’s Austudy claim.

7. On 30 October 2018  Tier 1  of the Tribunal  affirmed the decision of the ARO to refuse Mr Revulge’s Austudy claim stating:

   During the hearing, Mr Revulge confirmed that he was enrolled in full-time study towards a Doctor of Philosophy the Queensland University of Technology and stated the only applied for AUS at the time of his claim because he was advised to do so by Centrelink officers. He acknowledged that at the time there was no provision in the legislation to allow AUS to be paid to a person who was enrolled in study for a postdoctoral degree at Queensland University of technology but he told the tribunal that he was appealing Centrelink’s decision because only following Centrelink’s advice at the time to apply for AUS.

8. On 29 November 2018 Mr Revulge sought a review of the  Tier 1 decision by this Division of the Tribunal. He disagrees with the decision made for the following reasons:

   not considered relevant evidence placed before the Tribunal

   considered irrelevant information

   not correctly follow the relevant Legislation

   bias towards  Centrelink

   distortion of facts and evidence against the applicant

   therefore the decision is plainly wrong

   THE ISSUES IN CONTENTION

9. The issue in contention is whether Mr Revulge had any prospects of success in his application for a review of the rejection of his Austudy claim.

   Relevant Legislation and Issues

10. Section 568 of the Act outlines the Qualification for Austudy payment--general rule

    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.

11. Section 569 of the Act outlines the Activity test.

    Activity test

    General

    (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

    (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 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 Doctor at an educational institution.

12. Section 569B of the Act outlines the approved course of education or study.

    Approved course of education or study

    For the purposes of paragraph 569A(b), a course is an approved course of education or study if it is a course determined, under section 5D of the Student Assistance Act 1973 , to be a secondary course or a tertiary course for the purposes of that Act.

    STUDENT ASSISTANCE ACT 1973 - SECT 5D Minister may determine secondary and tertiary courses etc.

13. Section 5D of Student Assistance Act 1973 states:

    Minister may determine secondary and tertiary courses etc.

    (1) The Minister may, for the purposes of this Act, determine in writing that:

    (a) a course of study or instruction is a secondary course, or a tertiary course; or

    (b) a part of a course of study or instruction is a part of a secondary course, or a part of a tertiary course.

    …….

    (3) A determination under subsection (1) is a legislative instrument.

14. Section 5 of the Student Assistance (Education Institutions and Courses) Determination 2009 (No. 2) defines a higher education institution:

    Higher education institutions

    For the definition of higher education institution in subsection 3 (1) of the Act, the following are to be regarded as higher education institutions for the purposes of the Act:

    (a)    an institution that is established by a law of the Commonwealth, a State or a Territory as a higher education institution;

    (b)    an institution registered or taken to be registered by TEQSA as a higher education provider

15. Section 10 of Student Assistance (Education Institutions and Courses) Determination 2009 (No. 2) defines a tertiary course:

    Tertiary courses

    (1) For paragraph 5D (1) (a) of the Act, a tertiary course is a full-time course:

    (a)    that is:

    (i)  specified in Column 1 of the table in Schedule 2 to this instrument and provided by an education institution specified for that course in Column 2 of that table; and

    …

    Schedule 2        Tertiary courses

Tertiary courses

6

Undergraduate or postgraduate accredited higher education course at the level of:

(iv) is not a course accredited at Master or Doctorate level (other than a course specified in Schedule 3)

SUBMISSIONS

1. Mr Revulge reaffirmed his stand taken at the Tier 1 hearing: that Centrelink had advised him to apply for Austudy and that Centrelink had made an administrative error. He argued that Centrelink had made a very hideous mistake and that the Tribunal should have power to investigate this administrative error. He vehemently argued that he’d been advised to apply for Austudy, even though he had made it clear to Centrelink at the time he was enrolling in a doctoral degree.  He was adamant the Tribunal should review this in light of the error made by Centrelink.

2. The Respondent indicated that the matter before the Tribunal was very simple, namely that the law in respect of approved courses for Austudy is unambiguous and without discretion. Simply put, a doctoral degree is not an approved course. As such, Mr Revulge was not qualified to receive Austudy payments under the act. His application for review had no prospect of success and should therefore be dismissed.

3. Mr Revulge was incredulous about the mistake Centrelink had made when it had advised him, verbally and in writing, to apply for an allowance to which he was not entitled.

4. The Respondent indicated that it is always in an Applicant’s best interest to apply for any benefits, as it was only when an application is made that all the facts can be determined and assessed. Indeed, it would be remiss of any Centrelink staff to indicate that a person was not qualified for a benefit in the absence of a claim.

   CONCLUSION

5. While the Tribunal understands Mr Revulge’s frustration at being advised to apply for a benefit he was not entitled to, there is no discretion for the Tribunal to investigate the administrative error. However, as Mr Revulge is legally qualified and purports to be a Professor of Law, he would be aware of the maximum the Law is the Law is the Law. Allowing the matter to progress was futile as he was not at the time, and would never be, entitled to Austudy under the legislative framework outlined above. The Tribunal dismissed the application under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 as there were no reasonable prospect of success.

6. The Tribunal advised Mr Revulge he could pursue a claim under Centrelink’s scheme for compensation for detriment caused by defective administration (the CDDA scheme), as an avenue to seek redress for his claims of administrative error  by Centrelink.

7. It was also explained to Mr Revulge that he could only pursue a claim for CDDA as an avenue of last resort. Applications under the CDDA scheme are discretionary. They are assessed on their individual merits. A finding that a mistake has been made by an official does not automatically mean compensation is payable.

   DECISION

8. The Tribunal dismissed the matter as it had no reasonable prospect of success.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke, Member

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Dated: 15 February 2019

Date of hearing:	17 January 2019
Applicant:	Self-represented
Advocate for the Respondent:	Ms Alisa Bramley Government Lawyer FOI and Litigation Branch