Jin and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 461

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 461

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° 2010/5254

GENERAL ADMINISTRATIVE DIVISION		)
Re		YIN CHENG JIN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date20 June 2011

PlaceMelbourne

DecisionThe Tribunal affirms the decision under review.

………….[signed]……………

Member

MOBILITY ALLOWANCE – handicapped – not vocational training – able to use public transport without substantial assistance – decision affirmed

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act 1991 s 1035

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

30 June 2011  Mr C. Ermert, Member

INTRODUCTION

1.      These reasons for decision are substantially the same as those given orally at the hearing on 20 June 2011.  The introduction, details of the hearing and the evidence presented have been added for completeness.

2.      Mr Jin, the applicant in this case, is studying at the University of Queensland for a Doctorate of Philosophy (PhD) in the area of Collection of Non-Western Art and Culture in Australia – Interpretation, cultural inclusion and exclusion.

3.      Mr Jin was in receipt of mobility allowance payments.  Mobility allowance is paid to people who are handicapped and who, as a result of that handicap, are unable to use public transport without substantial assistance to undertake vocational training.

4.      In March 2010 Centrelink, which provides services for the Department of Education, Employment And Workplace Relations, reviewed Mr Jin’s mobility allowance.  Centrelink cancelled Mr Jin’s mobility allowance on 21 June 2010 because he did not meet the qualification criteria.  An Authorised Review Officer (ARO) of Centrelink affirmed the decision.  Mr Jin applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO decision.  The SSAT affirmed the ARO decision on 18 November 2010.  The present matter is an application for a review of the SSAT decision.

THE HEARING

5.      Mr Jin appeared in person and was assisted by an interpreter in the Chinese language.  Mr Carson, a Centrelink advocate, represented the Respondent.  Mr Jin tendered four bundles of documents, taken into evidence as Exhibits A1 to A4.  The respondent tendered a document titled Review of Mobility Allowance, which the Tribunal took into evidence as Exhibit R1. The Tribunal also had before it the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).

THE ISSUE

6.      The issue to be determined is whether Mr Jin is entitled to continue to receive mobility allowance from 21 June 2010.

THE EVIDENCE

7.      Mr Jin gave evidence Centrelink had cancelled his mobility allowance on two occasions.  He said that the he was given a number of reasons for stopping the allowance.  Mr Jin said there was a question over the approval of the institution at which he was studying.  He provided evidence that the University of Queensland, an approved institution, supervised his studies.

8.      There was also a question whether he spent the required 32 hours in each four weeks on his studies on a continuous basis.  Centrelink questioned the time he spent on his studies, particularly in relation to the time he was in China, from August to November 2010.  Mr Jin said that he was studying on a distance learning basis which did not require his continual presence at the university.  He stated that, although the prime purpose of his trip to China was for family reasons, he continued to study while there.

9.      Mr Jin also believed that Centrelink stopped the allowance because, at 62 years of age, he was considered too old to be seeking gainful employment and therefore his studies were not considered vocational training.  He contended that age was not a factor in employment in his field of interest.  He felt insulted and subjected to age discrimination.

10.     Mr Jin said that he studies at home, at the East Melbourne Library, at the State Library and at the National Gallery of Victoria (the NGV).  He said that he was usually driven to the libraries and the NGV by his son or a friend but that sometimes he took taxis and sometimes he used public transport.  He said he manages to use trams.  Mr Jin said that while in China he mostly used taxis to travel to his places of study but occasionally used public transport.

11.     When asked for evidence of the time he spent studying, Mr Jin said that at his level of studies, he did not specifically record the hours spent, nor was he required to account for hours of study to his supervisor at the university.  He maintained that he spent well in excess of the required 32 hours in every four weeks on a continual basis.

12.     In regard to employment opportunities, Mr Jin said that in 2002 he had applied for a position in Adelaide, and later for a position at the Art Gallery of New South Wales.  He was unsuccessful in both applications and, although the job descriptions did not include a requirement for a PhD, he believed that his lack of a PhD was the reason for his not getting the jobs.  When asked for some verification of his belief, he said that he received no feedback from either application but presumed his lack of a PhD was the reason for not obtaining the positions because the people subsequently appointed did have such a qualification.

13.     In his oral submissions, Mr Jin spoke of the inconsistency of the decisions made in regard to the payment of the allowance.  He re-iterated strongly his objection to his age being used as a factor in the decision, describing it as discrimination.  Mr Jin contended that the issue of mobility is a matter for determination by a doctor and not the Tribunal.  He confirmed his difficulty in catching trams and trains.

CONSIDERATION

14.     The relevant legislation is contained in the Social Security Act 1991 (the Act). To be eligible for the receipt of Mobility Allowance, section 1035 of the Act requires a person to be:

(a)handicapped;

(b)undertaking vocational training continuously for 32 hours in every four week period;

(c)unable to use public transport without substantial assistance; and

(d)an Australian resident.

15.     The Respondent conceded that Mr Jin is handicapped within the meaning of the Act and that he is an Australian resident.

16.     In considering the issue of vocational training, the Tribunal turned to section 19 of the Act, which provides that vocational training includes training for a profession or occupation [emphasis added].

17.     In Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J, as President of this Tribunal, ruled that a decision maker can be informed by government policy guidance where that policy is not inconsistent with the law. The Tribunal is satisfied that in this case there is no inconsistency between section 19 of the Act and the Guide to Social Security Law (the Guide) at 3.6.6.50.  The Guide states:

Vocational training (1.1.V.60) assists the recipient to find gainful employment (1.1.G.10) or to carry on a profession, trade or business.  Training courses are only accepted as vocational training if the following conditions are satisfied:

·     the purpose of the training is to make the recipient ready for gainful employment, AND

·     it is more likely than not that the course will assist the recipient to find gainful employment, AND

….

[Emphasis added].

18.     In this case, the Tribunal is satisfied that Mr Jin is already well qualified in his area of interest by his long experience.  His qualification is evidenced by the National Gallery of Victoria’s acknowledgement of some information provided by Mr Jin.  In a letter dated 3 September 2010, the Director of the NGV said

Thank you for your letter of 9 August discussing in particular the labelling of Chinese vase 419-D5.  The information you present is very detailed and clearly comes from a deep knowledge of Chinese ceramics (T documents, T11).

19.     Mr Jin could produce no evidence supporting the need for PhD qualifications for gainful employment.  Although he stated that he failed to obtain the jobs in Adelaide and New South Wales because of his lack of a PhD qualification, he conceded that was only his own speculation.  He received no feedback from his applications for those positions.

20.     From the evidence of his  experience and recognised qualification in his area of interest and the lack of evidence of a requirement for PhD qualifications, the Tribunal is not satisfied that Mr Jin’s training is training for a profession or occupation or is required to make him ready for gainful employment.  Hence, the Tribunal is not satisfied that Mr Jin is undertaking vocational training.

21.     In regard to the requirement for 32 hours of study in every four weeks on a continuous basis, there was no evidence other than Mr Jin’s own statements that he complied with this provision.  The Tribunal accepts Mr Jin’s description of his pattern of study, which indicates that he meets the requirement while studying in Melbourne.  The situation of his studies while in China is not clear. However, it is feasible that Mr Jin could have undertaken the studies claimed.  The Tribunal accepts Mr Jin’s statement that he fulfilled the study requirements while in China.  Accordingly, the Tribunal accepts that Mr Jin meets the requirement to study for 32 hours in every four weeks on a continuous basis.

22.     In regard to the issue of his inability to use public transport without substantial assistance, Mr Jin’s evidence was that he used public transport as and when he needed to.  Although he was mostly driven to and from the libraries and the gallery he sometimes used taxis, and sometimes he used public transport.  Mr Jin said that using public transport was difficult for him however, he offered no evidence, nor stated that he required any assistance to use public transport.

23.     Mr Jin submitted the report of his treating doctor, Dr Freeman, with his original application for mobility allowance and it is an attachment to the respondent’s Statement of Facts and Contentions.  In her report dated 17 August 2005, Dr Freeman concluded:

The combination of injuries is such that entering and exiting bus and trains is very difficult for this man.

He cannot easily climb steps and cannot use his arms to hang on.

However, the Tribunal notes that there is no mention of Mr Jin requiring substantial assistance to use trams and trains.

24.     The Tribunal notes that Dr Freeman and Mr Jin agree that his use of public transport is difficult.  However, the Tribunal notes also that there is no evidence that Mr Jin requires substantial assistance to use public transport.  Accordingly, the Tribunal is not satisfied that Mr Jin requires substantial assistance to use public transport.

CONCLUSION

25.     From the evidence given, the Tribunal is not satisfied that Mr Jin is undertaking vocational training as defined in the Act.  The Tribunal is also not satisfied the Mr Jin requires substantial assistance when using public transport.  The Act requires both of these provisions to be met in order for an applicant to qualify for mobility allowance.  Therefore, the Tribunal finds that Mr Jin is not entitled to the receipt of mobility allowance.  The Tribunal affirms the SSAT decision to cancel payments from 21 June 2010.

26.     Mr Jin has previously received mobility allowance.  However, in this instance the Tribunal has confined its considerations to the decision under review and does not interfere with the decisions that granted the earlier payments.

DECISION

27.     The Tribunal affirms the decision under review.

I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C. Ermert, Member

Signed:........................[signed]..................................................
  Associate                  Grace Horzitski

Date of Hearing & Decision           20 June 2011
Date of Written Reasons                30 June 2011
Advocate for the Applicant            Self-represented

Advocate for the Respondent        Mr P Carson, Centrelink Advocacy Branch