JOSEPH DAVID and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 611
•5 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 611
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1772
GENERAL ADMINISTRATIVE DIVISION ) Re JOSEPH DAVID Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member M D Allen Date5 August 2009
PlaceSydney
Decision For the reasons given orally at the conclusion of the hearing of this matter on 5 August 2009, the decision under review is AFFIRMED. ....................[sgd]..........................
M D Allen
Senior Member
CATCHWORDS
SOCIAL SECURITY: Whether Applicant entitled to Youth Allowance – Applicant studying abroad - Applicant aware that he would be studying abroad when application for Youth Allowance made – Study at an Australian educational institution deferred – Applicant found not to be enrolled at an Australian educational institution– decision under review affirmed.
CASE LAW
Willis and Secretary, Department of Education, Employment and Workplace Relations (2008) 940
Secretary, Department of Family and Community Services v Brown (2006) FCA 532
LEGISLATION
Social Security Act: S 540, 541B(1) & (5)
REASONS FOR DECISION
5 August 2009 Senior Member M D Allen 1. At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision,
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.
I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: ............................[sgd]....................................................
M. Corcoran, AssociateDate of Hearing 5 August 2009
Date of Decision 5 August 2009
Solicitor for the Applicant Mr R David (Father of Applicant)
Solicitor for the Respondent Mr G Lozynsky, Centrelink Legal Services
EXTRACT OF TRANSCRIPT OF PROCEEDINGS
MR ALLEN : By application made the 29th day of April 2009, the Applicant sought review of a decision by a Social Security Appeals Tribunal (“SSAT”) affirming a prior determination rejecting his claim for Youth Allowance. The claim for Youth Allowance was made on the 23rd day of September 2008. In that claim the Applicant said, inter alia, that his term address would be 226 Sussex Avenue Morristown in the state of New Jersey in the United States. This situation which arose is that the Applicant applied to undertake rabbinical studies at the Yeshiva Gedola Rabbinical College of Sydney. On or be letter dated 22 September 2008, the administrator of that college wrote to the Applicant stating:
“This is to confirm that you have been accepted as a student in the Diploma of Talmudic Studies course at this college for the academic year commencing 13 October 2008. It is the decision of the management of this College that your entry to the course is deferred for one year. During that period you will be studying full time at the Rabbinical College of America, 226 Sussed Avenue, Morristown, New Jersey, USA, after which you will return to Australia to study at the Rabbinical College of Sydney. We require that regular reports and results of examinations be given to our faculty. All your studies overseas at the Rabbinical College of America will be accredited towards your Diploma of Talmudic Studies course.”
Part of their arrangement and why was set out in a document provided by Rabbi Yosef Feldman who is the Rabbinic Administrator of Yeshiva Gedola College, Sydney. In that statement, which I would say is not on oath or affirmed, and neither was Rabbi Feldman available for cross-examination, however, he states:
“As the states of New York, New Jersey, in USA, have more than 4 million Jews, compared to about 40,000 in New South Wales, the RCS may encourage its Australian students to study there for one or two semesters.”
He then goes on further to refer to the letter by the administrator of the Yeshiva Gedola College and says:
“ Deferred would be correctly interpreted by Centrelink if Joseph commenced his studies at a later date in RCS as a first year student, whereas in this case, his studies at RCA, if successful, would be considered as part of his studies at RCS.”
I might say that I do not necessarily agree with that interpretation of the word “deferred.” It seems to me even if the studies undertaken in the United States were considered to be part of his studies for his Diploma in Rabbinical Studies, it does not mean that he was, during that time, enrolled in the Sydney College. And it is this definition of “enrolled” that is at the crux of this matter. Section 540 of the Social Security Act 1991 (“the SSA”) states, inter alia:
“ Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period, if:
(a) either of the following applies:
(i) throughout the period the person satisfies the activity test…”
Subsection 541B(1) states:
“ For the purposes of this Act, a person is undertaking full-time study if:
(a) the person:
(i) is enrolled in a course of education at an educational institution…”
Subsection 541B(5) states, inter alia:
“ For the purposes of paragraph (1)(c), the 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.”
There is not dispute in this matter that, pursuant to the SSA and to subsection 3(1) and section 5D of the Student Assistance Act 1973, and the Determination of Education Institutions and Courses, being Determination No. 2007/1 by the Minister for Education, Employment and Workplace Relations, that the Yeshiva Gedola Rabbinical College of Sydney is an approved educational institution and the studies carried out at that college are approved courses of education.
The argument for the Respondent is, as I said earlier, that whilst the Applicant was undertaking studies in the United States, the Applicant was not enrolled at the Sydney college. What seems abundantly clear is that at the time the Applicant applied for Youth Allowance, namely on 23 September 2008, he was aware that he would be studying at the American College.
I refer to the letter by the administrator of the Sydney College, dated 22 September 2008, and also there is a letter being at document T15 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, dated 2 October 2008 from the American College, advising the Applicant he had been accepted as a first year student in the rabbinical course conducted at that institution. I note that letter is dated 2 October 2008 however as stated before, the Applicant gave the address of the American College is his application for Youth Allowance, which was lodged electronically on 23 September 2008. What I understood from the Applicant’s evidence was that he attended at the Sydney College for some two days before he departed for the United States and the American College. I do not think anything really turns on that. On 16 October 2008, the administrator of the Sydney College wrote to Centrelink stating:
“I confirm that the Diploma of Talmudic Studies course, for which Mr David has been accepted as a student, is an accredited two-year full-time course. Mr David’s first full-time year of study will be undertaken at the Rabbinical College of America, 226 Sussex Avenue, Morristown, New jersey, after which he will return to Australia to resume his studies as a second year student at the Rabbinical College of Sydney. All his studies overseas at the Rabbinical College of America will be accredited towards his Diploma of Talmudic Studies course.”
Although that letter refers to the Applicant’s enrolment in the diploma course, it goes on to say “ In preparation for his commencement as a student here –“ which would seem to indicate, as did the original letter of 22 September 2008 from the administrator, that entry to the course had been deferred. The term “enrolment”, or the word “enrol” is a common English word. The Respondent cited Willis and Secretary, Department of Education, Employment and Workplace Relations (2008) AATA 940. As an authority as to the meaning of the word “enrolment”, however, I consider that what Senior Member McCabe was discussing in that case was particularly referable to the procedures at the University of Queensland. I do not see any connection myself between enrolment and any necessity to pay fees. I note, for example, that at the Sydney College no fees are charged for tuition but the other fees charged are for board and lodging for those students who board at the college. Similar arrangements apply to the American College.
So I consider that the question of fees is not pertinent to this particular case. Reference was also made in Willis supra to the decision of Bennett J in Secretary, Department of Family and Community Services v Brown (2006) FCA 532. That turned on whether somebody has been enrolled in a course, vis-à-vis an enrolment in semesters. As Senior Member McCabe said:
“ Mr Brown succeeded under 541B(1)(a)(ii), because he was enrolled at Sydney in the previous semester, and planned to re-enrol in the following semester.”
That is not the case here. The Oxford English Dictionary 1969 reprint says of the word “enrol” as meaning:
“1.To write upon a roll; to write a name, inscribe the name of a person on a roll, list, or register; to make a list of.”
Meaning 2 is given as:
“ To place upon a list; to incorporate as a registered or acknowledged member.”
In this matter, it would seem that the entry was deferred for one year, although he has been accepted into the course. To say that a person has been accepted as a student does not meant that he is actually enrolled at that institution, and there is no evidence before me, apart from the bare statement in the letter of 4 November 2008, of an acknowledgment or an acceptance of an enrolment, which is qualified by the statement in preparation for his commencement as a student here. On the evidence before me, I am not satisfied that during the period that Applicant was studying in the United States he was actually enrolled at the Sydney College, as opposed to a person who have been accepted as someone who could complete a course there with credit given for his American units. The decision under review is affirmed.
END OF EXTRACT [12.46pm]
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