Mazukov and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 853

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/173

GENERAL ADMINISTRATIVE DIVISION          )
           Re      IVAN MAZUKOV
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date27 September 2002
PlaceHobart

Decision The decision under review is affirmed.

......(S'gd) J Handley....................

Senior Member
CATCHWORDS
Social Security - Austudy - applicant commenced Arts Degree & transferred to Arts/Law Degree - 'allowable study time' - whether exceeded - whether a prerequisite course undertaken - whether it and subjects failed or withdrawn can be disregarded - decision affirmed.

REASONS FOR DECISION

27 September 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 9 October 2001. The SSAT then affirmed a decision previously made by the Authorised Review Officer ("ARO"), to cancel payments of Austudy.
The application was heard in Hobart on 27 July. For reasons which will appear later, the hearing did not conclude. Mr Mazukov appeared without representation. Mr Perdon appeared on behalf of the respondent.
The Legislation
Entitlement to Austudy is to be found within the Social Security Act 1991.
Section 568 of the Act provides that a person is qualified for an Austudy payment if the person satisfies the "activity test". Section 569 provides that the activity test is satisfied if the person is "undertaking qualifying study".
Section 569A provides that a person is "undertaking qualifying study" if the person is enrolled in an "approved course of educational study" and is a "full time student" and satisfies "the progress rules".
For the purposes of this decision, the relevant course in which the applicant was enrolled is an "approved course of educational study" within the meaning of s.569B.
Section 569C provides that a person is a "full time student" if that person is "undertaking at least ¾ of the normal amount of full time study in respect of the course". Section 569E provides that the "normal amount of full-time study" in respect of a course (where the course is a designated course of study within the meaning of the Higher Education Funding Act 1988) is "the standard student load determined in respect of the course by the Institution".
Section 569G deals with the "progress rules" and in respect of full-time tertiary students, a "full-time student" satisfies the "progress rules" if on the day that person enrolled in a course "the time already spent by the student on the course or on one or more other tertiary courses at the same level as that course does not exceed the allowable study time for that course". Section 569H(3) provides that the "allowable study time for a course undertaken by a full-time student is the minimum amount of time needed to complete the course as a full-time student plus half an academic year".
Sub-section 569H(7) provides that if a person has exceeded the "allowable study time", the following shall be disregarded - (i) the time spent undertaking a pre-requisite course where that course is a normal requirement for admission to the course or (ii) in the case of a failed year of study, the failure is by reason of illness or other circumstances beyond the persons control or (iii) if the student "withdrew", the subject withdrawn is not recorded by the institution as a failure. There are other criteria recorded against sub-section (7) however the above instances only are relevant to the present application.
The Facts
Mr Mazukov has been in receipt of Austudy payments for the years 1994 to 2000 inclusive. The Members of the SSAT decided to obtain information from the University of Tasmania as to the applicant's academic record. For reasons which are presently not apparent, the SSAT was unable to obtain those records, however a letter was forwarded giving the "HECS weightings" for Mr Mazukov for each semester in which he was enrolled. That letter appears at page 136 of the T-documents. The letter would indicate that Mr Mazukov was in fact enrolled in 1992 but relevantly he has been enrolled in each semester of every year since 1994 until the year 2001. This review is only concerned with the cancellation of Austudy at 31 December 2000 and it would appear therefore that Mr Mazukov was enrolled for seven consecutive years between 1994 and 2000 inclusive. Whilst it is not clear that the "HECS weightings" amount to the equivalent of a student "undertaking at least ¾ of the normal amount of full-time study", in all of the years between 1994 and 2000 inclusive, Mr Mazukov had a waiting of .75 or greater except for the 1995 year where the combined waitings of each of the two semesters in that year amounted to .7.
Whilst it was agreed at the hearing that at all relevant times Mr Mazukov was enrolled in the combined degree course of Arts/Law, he said that subjects studied by him in 1994 and 1995 were a prerequisite and should be disregarded consistent with the operation of s.569H(7). He said that he studied Arts subjects only in these years and at the commencement of 1996 also studied the subject of "Introduction to Law". He said that unless he had successfully completed all of the subjects studied in 1994 and 1995 and the Introduction to Law subject at the beginning of 1996, he would not have been permitted to enter the degree course of Arts/Law. He said that authority for this proposition is to be found in the University Handbook. He did not have a copy of it. Mr Perdon had an extract from the Handbook and then only with respect to the Law Degree course.
It was Mr Perdon's contention that the study in 1994 and 1995 were not pre-requisite subjects studied for the Arts/Law Degree and should not be disregarded when determining whether Mr Mazukov had exceeded the allowable study time. He said that these subjects were a necessary component of the combined Arts/Law Degree and could not be regarded as prerequisite subjects. In the absence of information from the University to establish this issue one way or the other, I queried with Mr Mazukov whether it was the policy of the University to require students undertaking the combined degree to first complete the arts subjects and the subject of Introduction to Law before permission would be granted to that student to continue with the course. If that was so it would appear that the subjects could not be regarded as prerequisites but rather would be - in the case of students who successfully completed the course as did Mr Mazukov - that those subjects would then be regarded as part of the combined degree course. He said that he was unable to make submissions on this issue but remained adamant that the subjects were regarded by the university as pre-requisite subjects.
It was in these circumstances that I decided to ask Mr Perdon to make enquiries of the University and to obtain a complete student and/or enrolment record of Mr Mazukov with the University since 1994 including specific details of the subjects studied and whether the subjects studied in 1994 and 1995 were regarded by the University as a prerequisite for students entering the Arts/Law Degree or whether they were subjects which were part of that degree.
I indicated to the parties that upon that information being provided and made available to Mr Mazukov that I would then invite further written submissions and then complete this review. Alternatively, in the event that either party preferred to make oral submissions I would hear those submissions by telephone or by video conference from Melbourne.
With respect to the failure of some subjects by Mr Mazukov, he pointed to illness as the cause. Additionally, he said that there were other circumstances beyond his control which would account for having failed some of the subjects, namely, being involved in grievance procedures within the University and/or conflict with some lecturers.
Mr Perdon submitted that the documented evidence pointed to the applicant having failed four subjects only throughout the whole of the 7 years that he was a student and that there was no evidence of failure by reason of illness. Additionally he said that the applicant being involved in grievance procedures and other conflict at the university was not something that was beyond his control. He submitted that illness and other special circumstances could not be raised to establish failure of a "year of study" permitting the Secretary to disregard part of the allowable study time.
Mr Mazukov also submitted that he withdrew from the subject of "Family Law". He said this should be taken into account under s.569H(7). Mr Perdon submitted that the applicant did not withdraw from that subject. He submitted that on the information available to him the applicant did not commence that subject therefore he could not have withdrawn from it.
The respondent argued that the applicant has been paid for a total of 7.2 years of Austudy. It was submitted that the "allowable study time for a course undertaken by a full-time student" with respect to the combined Arts/Law Degree is five years. Having regard to s.569H(3)(c) the applicant is entitled to an additional "1/2 an academic year". Accordingly, the applicant has had an entitlement only to 5.5 years of Austudy.
Additionally, it was submitted by the respondent that from 1 January 2001 the applicant has been in receipt of Newstart Allowance because he has, since that time, been a part-time student. It was submitted that by reason of the applicant not having renewed his application for Austudy from 1 January 2001, he is not entitled - irrespective of the foregoing - for any entitlement to Austudy payment. Further to this it was submitted that the rate of Newstart Allowance is greater than the rate of Austudy Allowance and in the event that the applicant succeeded in this review and Austudy was paid to him from 1 January 2001, he would have incurred a debt by way of overpayment.
Mr Mazukov submitted that he continues to seek Austudy payments because as an Austudy recipient he is entitled to a supplementary loan from the Commonwealth Bank at $60 per fortnight. He would therefore be entitled to greater income per week. Mr Perdon said the difference between the rate of Austudy and rate of New Start Allowance is $60 per fortnight. It follows, he said, that the applicant will achieve no financial benefit by pursuing this review.
Both parties eventually lodged written submissions. Mr Perdon submitted - having obtained a number of responses to questions asked by him from the University - by reference to the University handbook - that the only admission requirement for the Bachelor of Arts Degree was matriculation or Year 12 standard. He also submitted that the admission requirement for the combined degree of Arts/Law is completion of the first year of an Arts degree including the subject of Introduction to Law. It followed, he said that the first year only of the Arts Degree is included in the minimum full-time requirement for the combined degree of Arts/Law of 5 years. Additionally, he submitted that the first year of the Arts Degree could be disregarded from the allowable study time if a candidate was enrolled in the Bachelor of Laws degree only, because the minimum full-time requirement for that course is three years.
In conclusion he submitted that there was no evidence from the material that he obtained from the University that the applicant did fail a year of study or part of it because of illness or other circumstances beyond his control. He submitted that by reference to the applicant's academic record obtained from the University, the applicant failed six subjects only at 31 December 2000 which had a total weighting of 0.775 years. Even if those subjects were totally disregarded the applicant had studied in excess of 5.5 years being the "allowable study time for a course undertaken by a full-time student" at 31 December 2000 being the date that the Austudy payments were cancelled.
In his written submissions Mr Mazukov submitted that the study by him of the Arts subjects were a prerequisite to the commencement of the combined Arts/Law degree and were subjects that he regarded as being "superfluous".
With respect to "other circumstances beyond his control" (giving rise to disregarding part of the allowable study time), Mr Mazukov submitted that in addition to the failed subjects, he had an inability to study as a consequence of "actions by the University or bodies and individuals who were controlled or influenced by the University". He said that he was required to "undertake numerous activities outside the University - to look for shelter, to spend time going to Doctors and psychiatrists, to deal with disciplinary actions and complaints to security and police and to liaise with various government departments. All that resulted in some actions and counter actions culminating in a presently pending application for leave to appeal before the High Court of Australia".
Conclusion & Reasons For Decision
In calculating the allowable study time for a course, a number of events are provided by s.569H(7) permitting disregard to part of the time occupied in study.
The provisions which relevantly apply in the present case are found at paragraph 9 of these reasons.
One of the issues permitting disregard for part of the time studied, is where time was spent undertaking a prerequisite course where that course is a normal requirement for admission to the course. In the present case the applicant initially commenced an Arts Degree but later enrolled in a combined Arts/Law Degree. The University handbook (page 78 Schedule A) provides that entry to the "BA - LLB" course is "200 - 300 level units selected from Schedule A of the Arts Degree to the combined value of 60% as approved by the Faculty of Humanities and Social Sciences". I understand this requirement as published to refer to completion of a number of Arts subjects which have a certain value or proportion in the totality of the Arts Degree. Completion therefore of those subjects is not a "course" but rather completion of a number of subjects of a course. It follows therefore that the time spent undertaking some Arts subjects is not time spent undertaking a prerequisite course. A "prerequisite course" must surely amount to the completion of the whole of a course as opposed to completion of part of it, which Mr Mazukov appears to have undertaken.
Another issue or event which would permit disregard of part of the time studied is the failure of a year of study and where the failure is by reason of illness or other circumstances beyond the persons control. Reference to the applicant's academic record indicates that he has not suffered a "failed year of study". He failed two subjects in 1992 and 2000 and one subject in 1995 and 1999. Whilst not strictly relevant - because the applicant has not suffered a "failed year of study - there is no evidence which points to the applicant failing any of the above six subjects by reason of illness or other circumstances beyond his control. The stated reasons by Mr Mazukov have clearly not interfered with his studies because an examination of his academic record between 1992 and 2001 indicates that he studies 44 subjects (a total of 8 years - he was not enrolled in 1993) and where for most of the subjects he achieved excellent results achieving many "credits", "distinctions" and in 1998, a "high distinction".
The third issue which would permit disregarding part of the time studied is the time spent studying a subject that was withdrawn and where the withdrawn subject is not recorded by the Institution as a failure.
In 1999 and 2001 the University academic record, records the applicant as having withdrawn from one subject in each of those two years with the notation against each entry of "withdrawn - no academic penalty". I am satisfied that the latter words, namely "no academic penalty" cannot be interpreted as a "failure" of those subjects withdrawn.
In all of the circumstances I am satisfied that the applicant has exceeded the "allowable study time" and the decision made to end Austudy at the end of 2000 was in the circumstances correct. It follows that the decision under review should be affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley, Senior Member
Signed:         .....................................................................................
  Administrative Assistant
Date of Hearing   27 May 2002
Date of Decision   27 September 2002
Counsel for the Applicant         Applicant appeared in person
Counsel for the Respondent    Mr David Perdon
  Advocacy & Administrative Law Team
  Centrelink

[2002] AATA 853

27 September 2002

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Interpretation

Legitimate Expectation

Allowable Study Time