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

Oyberman and Secretary, Department of Social Services (Social services second review) [2021] AATA 3535 (5 October 2021)
Division:GENERAL DIVISION
File Number: 2020/5025
Re:Mr Yisroel Oyberman
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke, AO Member
Date:5 October 2021
Place:Melbourne

The decision under review is affirmed.
..........................[sgd]..............................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – youth allowance – whether the applicant satisfied the general qualification requirement for youth allowance – whether decision to reject claim was correct – whether course was an approved course – whether “special circumstances” exist – whether appropriate to exercise discretion – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Student Assistant Act 1973 (Cth)
Student Assistance (Education Institutions and Courses) Amendment Determination 2017
Student Assistance (Education Institution and Courses) Determination 2019
Social Security (Special Circumstances Exemption to Youth Allowance Activity Test Guidelines) Instrument 2019
Cases
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadle and Director-General of Social Security (1984) 6 ALD 1
Dranichnikov v Centrelink (2003) 75 ALD 134
Groth and Secretary, Department of Social Security (1995) 40 ALD 541
Mikhael and Secretary, Department of Education, Employment and Workplace Relations [2013] AATA 355
Secondary Materials
Guide to Social Security Law, Department of Social Services
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, GA Res 36/55, A/RES/36/55 (25 November 1981)
REASONS FOR DECISION
Ms A E Burke, AO Member
5 October 2021
INTODUCTION

Mr Yisroel Oyberman (the Applicant) sought a second-tier review by the General Division of the AAT (AAT2) of the decision made by the Secretary of the Department of Social Services (the Respondent) on 5 January 2020 to reject his claim for Youth Allowance (YA) as the course or institution he was enrolled in was not approved or no longer approved for YA eligibility.
The application was heard on 29 June 2021 by video conference. Mr Oyberman was represented by his father, Mr Mark Oyberman. Ms Kellie Latta of Sparke Helmore Lawyers appeared for the Respondent. At the conclusion of the hearing the Tribunal allowed Mr Oyberman additional time to provide further submissions and the Respondent time to reply to any additional matters relied upon by Mr Oyberman.
BACKGROUND
Mr Oyberman is a 19-year-old full time student of the Jewish faith. He completed year 12 in 2019, achieving exceptional results, and was offered a place in an Engineering Degree at Monash University which he accepted but deferred so he could complete a Diploma of Talmudic Studies. As an observant Jew, Mr Oyberman advised that he has a sacred obligation and religious duty to undertake this course of significant cultural and religious perspective at this stage in his life.
On 5 January 2020, Mr Oyberman submitted an online claim for YA in which he advised he had not undertaken paid work in the last 12 months, that he would have to live away from his family home to undertake his studies, and intended to undertake a Diploma of Talmudic Studies, full-time for one year, 40 hours per week, commencing on 13 January 2020 at the Rabbinical College of Australia and New Zealand (the Rabbinical College).
On 5 January 2020, Centrelink rejected Mr Oyberman’s claim for YA as the course or institution he was enrolled in was not approved or no longer approved.
On 28 February 2020, an Authorised Review Officer (ARO) reviewed the decision to reject Mr Oyberman’s claim for YA, finding Mr Oyberman was not qualified to receive YA as the Diploma of Talmudic Studies at the Rabbinical College was not listed as having been approved by the relevant Minister. The ARO found:
To qualify for Youth Allowance you must be enrolled in an approved course of education undertaking at least three quarters the normal amount of full-time study with an approved provider.
For the purposes of Youth Allowance, an approved institute of study is one approved by the Minister for Social Services who has the authority to approve courses and institutions. For a course to be approved both the course content and institute providing the course must meet certain requirements. These requirements are determined by the Australian skills quality authority (ASQA) or the relevant state/territory authorities. The agency is not involved in this accreditation process.
You are enrolled in a Diploma of Talmudic Studies at the Rabbinical college of Australia and New Zealand. This is not an approved course for Youth Allowance purposes.
As your course is not approved for student payments, I have found the decision to reject your claim. Allowance was correct.
On 21 July 2020, the Social Services and Child Support Division of the AAT (AAT1) affirmed the decision of the ARO to reject Mr Oyberman’s YA claim as the Diploma of Talmudic Studies was not an approved course of study. The Member found at [7]-[9]:
Here the evidence confirmed Mr Oyberman is studying full-time towards a diploma in Talmudic studies at the Rabbinical College of Australia and New Zealand. The course is full-time and expensive. Mr Oyberman Snr said he is surprised that this course does not have the appropriate standing given that it provides a solid foundation for future studies and is of very important cultural and religious significance.
Review of the legislation in paragraph 6 above confirms that the course is not an approved course. It follows that despite Mr Oyberman’s full-time commitment to the course, as it is not approved, youth allowance is not payable and the decision to reject the claim for youth allowance is legally correct.
Written and oral submissions compelling the tribunal to apply our discretion in the circumstances of the case. Careful review of the act confirmed no discretion exist to take into account the circumstances of this case. If there was, the Tribunal would certainly have applied it.
On 19 August 2020, Mr Oyberman sought a review of the AAT1 decision by this division of the Tribunal stating:
1. The decision was based on the legislation which is listed at the Federal Registration of Legislation as No longer in force (student assistance (education institution and courses) determination 2009 (No. 2) and another not listed there at all (student assistance (education institution and courses) amended determination 2017 (No.3))).
2. The important facts were not mentioned in the decision and assumed as not being considered (again).
3. Some facts were misinterpreted, and this could result in wrong conclusion (again).
4. The request to escalate the issue to the appropriate level was ignored (again) and the appropriate part of the legislation was not applied as the result.
ISSUES IN CONTENTION
The Tribunal needs to consider the following relevant issues:
(a)Whether Mr Oyberman was entitled to YA; and
(b)If not, whether Mr Oyberman is entitled to a special circumstances exemption pursuant to section 542H of Social Security Act1991 (the Act).
RELEVANT LEGISLATION
The Guide to Social Security Law (the Guide) describes YA as an income support payment that provides financial assistance to young job seekers, aged 16-21 who are looking for work or undertaking other activities to improve their employment prospects, and full-time students or Australian apprentices aged 16–24. To be eligible for YA, students must study an approved course with an approved education provider such as secondary school, special school, TAFE or a registered training organisation or higher education provider, like a university.
The Services Australia website states that to be an approved course at diploma level or higher for YA eligibility, the course must be both approved for the Vocational Education and Training (VET) Student Loan Scheme (VSL) and undertaken with a provider approved to provide VSL courses. While a student applying for YA does not need to take out a VSL, the course provider needs to offer it.
The Services Australia website also advises that to be an approved higher education course for YA eligibility, the course must be approved for the Higher Education Loan Scheme (HELP). While a student applying for YA does not need to take out HELP, the course provider needs to offer it.
Section 540 of the Act outlines the general rule for the qualification for youth allowance:
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 (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);
…
Section 541 of the Act defines the general rules for satisfying the activity test:
(1) Subject to section 541A and subsection (3) of this section, a person satisfies the activity test in respect of a period if:
(a) the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study (see section 541B); or
(b) subject to subsection (4), the person (not being an early school leaver) satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person).
Section 541B of the Act outlines the requirements for undertaking full-time study:
General
(1) 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; or
(ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or
(iii) was enrolled in the course and satisfies the Secretary that he or she Intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and
…
(c) the course in question is an approved course of education or study (see subsection (5)); and
(d) in the Secretary's opinion, the person is making satisfactory progress towards completing the course.
Note: Only one course of education can be considered in deciding if a person satisfies the undertaking full-time study requirement: see section 541C.
….
Meaning of normal amount of full-time study
(2) For the purposes of paragraph (1)(b), the normal amount of full-time study in respect of a course is:
(a) if:
(i) the course is a course of study within the meaning of the Higher Education Support Act 2003; and
(ii) there are Commonwealth supported students (within the meaning of that Act) enrolled in the course;
the full-time student load for the course; or
(b) if the course is not such a course and the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course--the amount so defined; or
(c) otherwise--an amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.
Alternative meaning of normal amount of full-time study
(3) For the purposes of paragraph (1)(b), and without limiting subsection (2), the normal amount of full-time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week.
Meaning of satisfactory progress
(3A) In forming an opinion about whether a person is making satisfactory progress for the purpose of paragraph (1)(d), the Secretary is to have regard to the guidelines.
(3B) The Minister, by legislative instrument:
(a) is to set guidelines for the exercise of the Secretary's discretion under subsection (3A); and
(b) may revoke or vary those guidelines.
Meaning of approved course of education or study
(5) 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.
Section 542H of the Act outlines the special circumstances exemption for YA:
General
(1) Subject to subsections (2) and (3), a person has a special circumstances exemption in respect of a period if:
(a) the Secretary is satisfied that special circumstances, beyond the person's control, exist; and
(b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to satisfy the activity test for that period.
(1AA) Subsection (1) does not apply to circumstances wholly or predominantly attributable to the person's misuse of alcohol or another drug, unless the person is a declared program participant, a new apprentice or undertaking full-time study.
Meaning of special circumstances
(1A) In making a decision under subsection (1), the Secretary is to have regard to the guidelines.
(1B) The Minister, by legislative instrument:
(a) is to set guidelines for the exercise of the Secretary's discretion under subsection (1A); and
(b) may revoke or vary those guidelines.
Duration of period
(2) The period referred to in subsection (1) is not to be more than 13 weeks.
Duration where a number of determinations made
(3) If:
(a) the Secretary makes more than one decision under subsection (1) or under subsection 731E(1); and
(b) the periods to which the decisions relate form a continuous period;
the continuous period is not to be more than 13 weeks, unless the Secretary decides otherwise, having regard to the continued existence, or likely continued existence, of the special circumstances on which the last preceding decision was based.
Section 5D of the Student Assistance Act 1973 (the SA Act) outlines how the Minister may determine secondary and tertiary courses:
(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.
(2) For the purposes of this section, a determination that:
(a) was made under paragraph 7(1)(c) as in force before the day on which this section commences; and
(b) was in force immediately before that day;
is taken to be a determination under subsection (1) of this section and may be amended or repealed accordingly.
(2A) A determination under subsection (1) may make provision for and in relation to a specified course, that ceases to be a secondary course or a tertiary course, continuing to be a secondary course or a tertiary course in relation to specified persons in specified circumstances.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(3) A determination under subsection (1) is a legislative instrument.
Section 11 of the Student Assistance (Education Institutions and Courses) Determination 2019 (the Determination) defines 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
(ii) for a course specified in item 5 or 8 of that table —an approved course within the meaning of the VET Student Loans Act 2016; and
(iii) for a course specified in item 10 of that table—to the extent that the course consists of study in a VET course, an approved course within the meaning of the VET Student Loans Act 2016; or
(b) that is:
(i) accredited at Masters level; and
(ii) specified in Column 2 of the table in Schedule 3 to this instrument; and
(iii) provided by the education institution specified for that course in Column 1 of that table; or
(c) to which section 12 of this instrument applies.
(2) Without limiting subsection (1), a course that meets the requirements of paragraph (1)(a), (b) or (c) and is not a full-time course is a tertiary course for the purposes of section 1061PC of the Social Security Act 1991.
(3) For paragraph 5D(1)(b) of the Act, a unit of a course mentioned in subsection (1) or (2) is part of a tertiary course.
CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), referred to as the “T documents”. Mr Oyberman’s father provided numerous statements, prior to and after the hearing, and gave oral evidence under affirmation. The Applicant did not attend the hearing.
Australian Skills Quality Authority (ASQA) information records that the Diploma of Talmudic Studies at the Rabbinical College accreditation expired on 30 June 2020 and provides the following description:
The course providers participants with a breadth of knowledges and skills in the application of Jewish laws and philosophy that may be used in a variety of vocational outcomes, such as Jewish Studies Teacher, Outreach Worker, Student Counsellor, Youth Activities Director, Chaplain etc. It also provides a possible first stage in the pathway towards a career as a Rabbi.
The Applicant’s Statement of Facts, Issues and Contentions, lodged with the Tribunal on 12 May 2021, provided the following relevant facts in chronological order as the Applicant perceives them:
1.Till 31 December 2019 our family received Family Tax Benefit (FTB) for Yisroel which was expected to be replaced by Youth Allowance after Yisroel received the offer from Monash University, accepted it and deferred for one year in order to complete the Diploma of Talmudic Studies course at The Rabbinical College of Australia & New Zealand.
2.The Diploma of Talmudic Studies course is a course of the Jewish Religious education which is not just “significant from a cultural and religious perspective” but is “…the sacred obligation that comes from religious duty” which is beyond the person’s control. In fact, “…Jews became the only people in history to predicate their very survival on education”.
3.Yisroel’s plan always was to complete 2 years the Diploma of Talmudic Studies course in 1 year as he was academically capable to do this.
4.Yisroel always intended to enrol in Monash University engineering course after completion of the Diploma of Talmudic Studies course when enrolments in the Monash University engineering course are next accepted
5.It took almost three weeks (from 17 December 2019 till 5 January 2020) to lodge Youth Allowance application due to communication and technical problems at Centrelink side.
6.The application was rejected by the Centrelink robot minutes after being lodged on the only basis “because the course or institution you are enrolled in is not approved or no longer approved” without reference to any legislation.
7.On 5 January 2020 the Diploma of Talmudic Studies course was registered as 10117NAT by the Australian Skills Quality Authority and The Rabbinical College of Australia and New Zealand was a registered training organisation (code 4041).
8.During the discussion of the above fact with the Services Australia officer we were advised that the course and the course provider must be registered and approved for the VET Student Loan (VSL) in order for the student to receive youth allowance as it is stated at the Services Australia website.
9.Neither Services Australia officer nor Services Australia website provided any reference to any legislation supporting the above.
10.To the best of my knowledge, the Diploma of Talmudic Studies course was never approved for the VET Student Loan (VSL) and the college was never approved to provide VSL courses.
11.Diploma of Talmudic Studies course a course of the Jewish Religious education which is not the VET education neither by definition nor by essence, nor by purpose.
12.It is the religious obligation of the parents to pay for their children religious education and therefore no student of the Diploma of Talmudic Studies course would ever require such a loan.
13.We could not find any alternative Jewish Religious education course on the list of the approved VSL courses referred to by Services Australia website link.
14.Since then the facts 11 -13 were discussed with every Services Australia officer we were connected to as the reasons for appeal against the rejection of our claim. One officer was asked to find the alternative approved Jewish Religious education course, but she couldn’t find any. Every officer explained that he/she can’t change the decision as they are following the guidelines. Every officer was asked to escalate the issue to the level where the decision could be changed but this never happened.
15.During the conversation with the Services Australia officer on 31 January 2020 it became apparent that all the previous officer recorded not what was said, but their interpretation of what was said. I asked the officer to read me back the records he was making and correct/amend his records until most of our reasons for appeal and the request for the review were recorded.
16.On 28 February 2020 the Review by the Authorised Review Officer finally clarified the reason for our application rejection, listed the applied legislations and provided information the available ways to resolve our concerns. As the applied legislations nowhere mentioned the requirements for course and the course provider to be registered and approved for the VSL in order for the student to receive youth allowance and our personal circumstances (Facts 1 – 4 and 11 – 13 above) were not addressed at all, we requested an independent review by AAT.
17.In the middle of March the Diploma of Talmudic Studies course was disrupted by COVID-19 and Yisroel considered to withdraw from the course and to seek for work but was convinced to continue his study, as within a few days the course started some activities online and within a few weeks gradually transferred online most of the classes and activities, excluding the practical activities.
18.The decision of the independent review by ATT dated 21 July 2020 was based on the extensive list of legislations some of which for some reason were not used or mentioned by the Authorised Review Officer. As some of the applied legislations were not in force at the time of being applied, our personal circumstances (Facts 1 – 4 and 11 – 13 above) were still not addressed at all and the request to escalate the issues to the appropriate level was still ignored, we applied for a review of this decision by AAT.
19.We received T- Documents which again contain the legislations never used or mentioned before and referring to other legislations never used or mentioned before. We understand that Social Security legislation is extremely complex (one of the most complex according to opinion of the professional lawyer in this field) and would appreciate if DHS and AAT would inform us about all the legislations, including the specific parts, they are planning to use at the hearing as currently we are not sure that this is the case.
…
22. In December Yisroel enrolled into the Monash University Engineering course as he always intended and his subsequent claim for Youth Allowance was approved without any problems on 22nd December 2020…

Mr Oyberman’s father provided a summary of Jewish religious education:
Judaism is unique in the sense that the Jewish education is not just “significant from a cultural and religious perspective” but is “…the sacred obligation that comes from religious duty” and it is obligation of the parents to provide the Jewish education for each child until the age of 24 years and to pay for it.
Rabbi Lord J Sacks OBE, until recently a Chief Rabbi of Great Britain and Commonwealth, wrote in his 18 January 2021 instalment of his Covenant and Conversation essay series, titled ‘The Far Horizon – Bo 5781’
“…Jews became the only people in history to predicate their very survival on education. … That is why they alone, of all the civilisations of the ancient world are still alive and strong, still continuing their ancestors’ vocation, their heritage intact and undiminished. …That can only be done through a sustained process of education… ….and with the sacred obligation that comes from religious duty.”
Since Torah was given to Moses at Mount Sinai 3333 years ago, the methods of Jewish education practically didn’t change (knowledge is transferred directly from the teacher to the student at the level and the pace the student is comfortable with) and in its current form it exists for more than 2000 years. “In Western and secular culture, religious education implies a type of education which is largely separate from academia”, i.e. any secular classifications, academic levels definitions, titles, etc applied to religious education may not always adequately reflect the real correlation with the secular equivalents (concepts like certificate, diploma, degree, etc do not exist in religious education and the main criteria there are the amount and depth of the knowledge of the Law and ability and willingness to apply it in everyday life and teach it others).
Mr Oyberman’s father relied upon the following definitions in his submission:
What is Vocational Education and Training (VET)?
Vocational Education and Training (VET) qualifications have been developed with the specific goal of preparing students with skills for work. VET is designed to help people to join or re-join the workforce, move into a new career or gain additional skills in their existing career. VET qualifications have a very practical focus. As well as specific skills for your chosen occupation, a VET course will often include generic work-based topics such as workplace health and safety.[1]
[1] ‘Qualifications’, Upskilled (Web Page, 2021) < education
In secular usage, religious education is the teaching of a particular religion and its varied aspects —its beliefs, doctrines, rituals, customs, rites, and personal roles. In Western and secular culture, religious education implies a type of education which is largely separate from academia, and which regards religious belief as a fundamental tenet and operating modality, as well as a prerequisite condition of attendance. The secular concept is substantially different from societies that adhere to religious law, wherein "religious education" connotes the dominant academic study, and in typically religious terms, teaches doctrines which define social customs as "laws" and the violations thereof as "crimes", or else misdemeanours requiring punitive correction.[2]
Religious and moral education is a process where children and young people engage in a search for meaning, value and purpose in life. This involves both the exploration of beliefs and values and the study of how such beliefs and values are expressed.[3]
Talmud
The Talmud is a central text of Rabbinic Judaism, considered second to the Torah. It is also traditionally referred to as Shas, a Hebrew abbreviation of shisha sedarim, the "six orders" of the Oral Law of Judaism. The Talmud has two components: the Mishnah, the first written compendium of Judaism's Oral Law, and the Gemara, an elucidation of the Mishnah and related Tannaitic writings that often ventures onto other subjects and expounds broadly on the Hebrew Bible. The terms Talmud and Gemara are often used interchangeably, though strictly speaking that is not accurate. The whole Talmud consists of 63 tractates, and in standard print is over 6,200 pages long. It is written in Tannaitic Hebrew and Aramaic. The Talmud contains the opinions of thousands of rabbis on a variety of subjects, including law, ethics, philosophy, customs, history, theology, lore and many other topics. The Talmud is the basis for all codes of rabbinic law and is much quoted in other rabbinic literature.[4]
In his book, the Complete Idiot's Guide to the Talmud, Rabbi Aaron Parry says that when, shortly before his death, Einstein was asked what he would do differently if he could live his life again, he replied without hesitation: "I would study the Talmud."
It contains the foundations of Halakha - the religious laws that dictate all aspects of life for observant Jews from when they wake in the morning to when they go to sleep at night. Every imaginable topic is covered, from architecture to trapping mice. To a greater extent than the other main Jewish holy book, the Torah, the Talmud is a practical book about how to live.
"The laws are very, very relevant to everyday life," says Eliezer Cohen, a real estate manager who organises the classes on the train with a couple of other amateur scholars. "Many times, I go to the office afterwards and I'll get questions on current events or in business and I'll say, 'Oh, we just learnt that today in the Talmud.' It's a blueprint for life”.[5]
[2] ‘Definitions for religious education’, Definitions (Online Dictionary, 2021) < Education Scotland, ‘Religious and Moral Education: Principles and Practice’, Curriculum for Excellence (Curriculum Guide, 2021) < ‘Definitions for Talmud’, Definitions (Online Dictionary, 2021) < William Kremer, ‘The Talmud: Why has a Jewish law book become so popular?’, BBC News (online, 8 November 2013) <
Mr Oyberman’s father provided a summary of the course provider:
The Rabbinical College of Australia & New Zealand (code 4041) has been ASQA registered since 1993 as a Jewish education provider offering the registered (10117NAT) nationally and internationally recognised Diploma of Talmudic Studies course.
Although I am not authorised to speak on behalf of The Rabbinical College of Australia & New Zealand, to my best knowledge, the Diploma of Talmudic Studies course was never approved for the VET Student Loan (VSL) and the college was never approved to give VSL courses.
To my opinion, the only one simple reason for the above was that the lengthy and costly approval processes involved would not add any practical value to the college and its students as in accordance with the Jewish Law it is obligation of the parents to pay for their children education and therefore no student would ever require to take such a loan.
As the result, when Student Assistance (Education Institutions and Courses) Amendment Determination 2017 (No. 3) came in force from 1st January 2018, some students (about 50% of local students or about 25% of the total college students who otherwise would be eligible for Youth Allowance) became automatically not eligible for Youth Allowance. The college was formally informed about this only on 2nd January 2018 (according to the letter to the students).
To my knowledge, the numerous attempts taken since then in order to restore eligibility for Youth Allowance for those students, who otherwise would be eligible for Youth Allowance, were not successful and currently (since at least May or June 2020) the college is trying to register the course as Certificate IV of Talmudic Studies in order to eliminate the requirements for VSL approvals. In my opinion such approach is very questionable as there is no guarantee that requirements for VSL approvals will not be extended to the Certificate Levels courses in future, could be in nearest future.
·The Amendment that came in force from 1st January 2018 caused the students, who otherwise would be eligible for YA, became automatically not eligible for YA due to the course was never approved for the VET Student Loan (VSL) and the college was never approved to give VSL courses;
·According to The Amendment Explanatory Statement the course and the college have no chances to meet the approval criteria for being eligible and listed for VSL as:
o The course does not and never will have a high national priority (Jews represent less than 0.35% of the Australian population);
oThe course does not and never will meet industry needs (the course was accredited as ‘Non-industry specific training’);
oThe course does not and never will contribute to addressing skills shortages in industry (see above and below);
oThe course is not and never will align with strong employment outcomes as in its essence, the course is no more but a preparatory or a pre-vocational course and its graduates are expected to do further secular vocational or tertiary education studies or apprenticeship in order to get industry qualifications;
·The college already registered this course as 10921NAT Certificate IV in Talmudic Studies which is not required to be approved for the VSL in order to make its students eligible for YA. This course was expected to be registered before 5th January 2020 and definitely before the 10117NAT Diploma of Talmudic Studies course accreditation expired, but the accreditation process took much longer than expected.
Mr Oyberman’s father provided what he described as an extract from the Statement of Compatibility with Human Rights:
The Amendment Determination engages the following human rights:
Right to Social Security (p 9) The social security system must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.
For VET courses, the amendments are designed to support students’ educational and employment prospects. Course eligibility for VSL looks at courses that have a high national priority, meet industry needs, contribute to addressing skills shortages and align with strong employment outcomes. Courses with limited public benefit are not listed for VSL and so will no longer meet the approval criteria for student payments. (p 9 -10)
… the amendments may enable the protection of students by enhancing educational and employment outcomes and protect students from unscrupulous providers. (p 10)
Conclusion
The Amendment Determination is compatible with human rights because it does not limit the basic right to social security or education. It is a reasonable, proportionate… (p 10)
Circulated by the authority of the Minister for Social Services, the Hon Christian Porter MP
Mr Oyberman’s father provided extracts from the United Nations General Assembly Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief:
…Considering that religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed…
Article 1
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
…
Article 5
1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.
CONTENTIONS
Applicant
In summary, Mr Oyberman’s father contended that:
(a)The Student Assistance (Education Institutions and Courses) Amendment Determination 2017 (No. 3) (the Amendment Determination), which is currently part of the Student Assistance (Education Institutions and Courses) Determination 2019, should not be applied to religious education courses as it was not designed for such a purpose; and
(b)In the case of Jewish religious education courses, the Determination conflicts with basic human rights and international declarations to which Australia is a party; or
(c)Students of Jewish religious education courses should be exempt from the YA activity test for the reasonable period of study due to special circumstances as the student’s religious duties are beyond their control; and
(d)Therefore, the decision to reject My Oyberman’s claim for YA on 5 January 2020 should be reversed.
Fundamentally, Mr Oyberman’s father contended that:
The situation, in which a student graduates with ATAR of 99.4, defers his university course in order to fulfill his Religious obligation and enrols into a registered Religious tertiary course with a registered provider, is found to not be eligible for the Youth Allowance despite meeting all the criteria of any applicable Australian Law, except the requirement for the course and the provider to be approved for VET Student Loans (VSL), is unjust, unfair, may potentially be in conflict with article 116 of The Constitution and Human Rights and Equal Opportunity Commission Act 1986 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and is unlikely to be the legislator’s intended outcome.
The root of Mr Oyberman’s father’s concerns was that the Amendment Determination developed by the Minister for Social Services specifically to regulate VET education, was not applicable to religious education as its objectives state:
“For VET courses, the amendments are designed to support students’ educational and employment prospects. Course eligibility for VSL looks at courses that have a high national priority, meet industry needs, contribute to addressing skills shortages and align with strong employment outcomes. Courses with limited public benefit are not listed for VSL and so will no longer meet the approval criteria for student payments.”
Mr Oyberman’s father contended it was obvious that no religious education course would ever meet the above eligibility criteria. He argued that Jewish Religious Education was not vocational education by definition and that it was not fair to apply the requirements of vocational education to Jewish religious education. He contended that the Diploma of Talmudic Studies should not be subject to VSL approvals as it was not a preparatory or a pre-vocational course in its essence.
Mr Oyberman’s father also argued that as Jewish education is a religious obligation, the Determination may not be compatible with human rights because it may conflict with the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Mr Oyberman’s father argued that from the moment this Amendment Determination came into force, no approved courses or providers of tertiary Jewish religious education existed in Australia.
Mr Oyberman’s father argued there were valid grounds for Yisroel’s YA claim to be approved which were not fully explored by Centrelink and that Yisroel’s case was unique, complex and incapable of being resolved by the “front desk” officers. Unfortunately, all his requests to escalate his son’s claim to the appropriate level, such as the Secretary or Minister, appear to have been ignored as such requests are not reflected in any document or transcript.
Mr Oyberman’s father argued strenuously that he and his son did not believe that the above outcome was intended by the legislators. He further argued that the relevant Minister has the power to amend the Determination to fix these problems, but that to date their numerous requests to escalate the matter to that level have been ignored.
Mr Oyberman’s father believed that the best way to resolve Yisroel’s YA claim was within Services Australia jurisdiction, on principles of justice, dignity, respect and confidentiality, as they did not want this case to become a political football.
Respondent
The Respondent acknowledged that the Diploma of Talmudic Studies was an approved course of education or study under social security law prior to 1 January 2018. It ceased to be an approved course for students commencing the course after 31 December 2017, due to alterations in social security law that took effect pursuant to the Amendment Determination.
The Respondent, however, noted there was no evidence from the Rabbinical College regarding the reasons why they were not currently approved, or whether they had had reapplied for approval.
The Respondent contended the factor of the Rabbinical College’s approval was not a relevant consideration, as the issue before the Tribunal was whether Mr Oyberman qualified for YA during the qualification period. The Respondent contended this required the Tribunal to make a determination of whether Mr Oyberman was undertaking full-time study in an approved course at that time. The Respondent submitted that during the qualification period, the Diploma of Talmudic Studies provided by the Rabbinical College, was not an approved course and noted that the changes introduced by the Determination took effect on 1 January 2018 — two years prior to the qualification period.
The Respondent contended, contrary to Mr Oyberman’s father’s submissions, that the Tribunal cannot decide that a course, which is not an approved course of education or study under social security law, is an approved course for YA based on any similarity with another course.
The Respondent noted Mr Oyberman’s father’s comment that the Determination “may be in direct conflict with Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and with the International Covenant on Economic, Social and Cultural Rights” but understood that this was not an issue within the Tribunal’s jurisdiction. The Respondent agreed that the Tribunal does not have jurisdiction to consider this but noted that the Explanatory Memorandum for the Determination contains a ‘Statement of Compatibility with Human Rights’, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011.
The Respondent contended that in the qualification period Mr Oyberman did not satisfy the activity test to qualify for YA under s 540 of the Act.
The Respondent took the Tribunal to an exhaustive list of why the Diploma of Talmudic Studies at the Rabbinical College did not fulfil the requirements of the activity test for Mr Oyberman to qualify to YA during the qualification period. They argued that in accordance with the numerous pieces of legislation which govern what constitutes an approved course of study for YA qualification, the Diploma of Talmudic Studies cannot be an approved course of study because it is not:
(a)a secondary course;
(b)a prevocational course, as there was no evidence that it was a course designed to assist people to gain entry to a specific VET course in Australian apprenticeship;
(c)an ESL course;
(d)a VET course;
(e)open learning;
(f)accredited at Masters level; or
(g)a tertiary course, under an instrument issued under subsection 5D(1) of the Act, at the time Mr Oyberman commenced studies.
Additionally, the Respondent argued that the Rabbinical College was not a higher education provider.
CONSIDERATION
Is Mr Oyberman entitled to YA?
The Tribunal finds that Mr Oyberman was not eligible to received YA while undertaking a Diploma of Talmudic Studies at the Rabbinical College.

On the surface, this is an easy determination to reach as the Act clearly states that to qualify for YA, a person must:
(a)be enrolled in an approved course of education; and
(b)Be undertaking at least three-quarters of a full-time study load with an approved provider.[6]
[6] Refer Social Security Act 1991 (Cth) ss 540, 541B, 569C.
An approved course of study, with an approved provider, is one approved by the Minister for Social Services. For a course to be approved, both the course content and institute providing the course must meet certain requirements. These requirements are determined by ASQA or the relevant state or territory authority. Approved courses are outlined in the Determination.
The Diploma of Talmudic Studies at the Rabbinical College was not an approved course for YA purposes in January 2020 when Mr Oyberman applied for YA. This is why Centrelink automatically rejected Mr Oyberman’s YA claim.
However, the Tribunal can appreciate why Mr Oyberman and his father were perplexed by Centrelink's decision to refuse him YA in light of the fact that the course and provider had previously been approved for the purposes of YA eligibility.
The Tribunal can understand Mr Oyberman’s father’s frustration that changes to legislation have resulted in his son’s course no longer being approved; however, the Tribunal does not have jurisdiction to address this concern. The Tribunal’s jurisdiction only applies to a determination of whether Mr Oyberman satisfied the eligibility requirements for YA during the qualification period. The Tribunal does not have the power to approve a course for the purposes of YA – that power rests with the Minister. The Tribunal notes the Senior Member’s finding in Mikhael and Secretary, Department of Education, Employment and Workplace Relations [2018] AATA 335 at [13] which clearly articulates this point:
In this case there is no scope for discretionary decision-making by the Tribunal. It stands in the shoes of the original decision-maker and it has no wider powers. It is bound by the same statutory provisions and delegated legislation. If those provisions do not allow further discretionary latitude then there is no option for the Tribunal to do anything else but follow the law
As the Guide states, YA is an income support payment that provides financial assistance to job seekers aged 16–21, and full-time students or Australian apprentices aged 16–24. The premise of the payment is that an individual is undertaking activities which will improve their prospects of employment. Section 540 of the Act outlines the activity test to qualify for YA. The Tribunal notes Mr Oyberman’s father has conceded the Diploma of Talmudic Studies is not a preparatory or a pre-vocational course in its essence and observed no religious education course would ever meet that eligibility criteria. Mr Oyberman’s father passionately and eloquently argued his son was required to undertake the course for purposes greater than preparation for employment. As Mr Oyberman put it, the purpose of the study was to develop as a human first, and the very survival of his son as a Jew, and by consequence the Jewish people, was dependent on his undertaking these studies.
The Tribunal can also appreciate Mr Oyberman’s father’s concern that the Determination “may be in direct conflict with the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and with the International Covenant on Economic, Social and Cultural Rights” as the changes to the scheme now appear to exclude religious education. However, this issue is not within the Tribunal’s jurisdiction. The Tribunal can only deal with the legislation as it finds it and does not have the power to alter legislation or determine if legislation complies with the fundamental principles of human rights enshrined in numerous international agreements to which Australia is a signatory.
The Tribunal however notes that the Human Rights (Parliamentary Scrutiny) Committee found:
The Student Assistance (Education Institutions and Courses) Amendment Determination 2017 (No. 3) (the Amendment Determination) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The Amendment Determination is compatible with human rights because it does not limit the basic right to social security or education. It is a reasonable, proportionate and necessary response to achieve the legitimate objective of ensuring consistency of Commonwealth support across the VET and higher education sectors.
The Tribunal is in furious agreement with Mr Oyberman’s father that education should do more than set you upon a path of work readiness, it should also develop you as a person, but unfortunately, that is not the basis for granting YA. As with all social security payments, YA is granted on the premise that an individual is unable to support themselves via any other means and is paid while an individual is studying in the hope it will lead to employment. Mr Oyberman’s Diploma of Talmudic Studies, whilst integral to his faith and person, were not assisting him to finds means to support himself in the future.
The Tribunal recognises that Mr Oyberman’s case is complicated by the fact that the same course was an approved course prior to 31 December 2017 after which its approval ceased due to the Amendment Determination. In effect, no student enrolled in the course after 1 January 2018 could qualify for YA for the same course in which numerous other students had qualified for YA prior to this date. While the Tribunal is perplexed by this, it can only apply the law as it finds it at the time of application, and when Mr Oyberman enrolled in the Diploma of Talmudic Studies, it was no longer an approved course for YA.
The Tribunal finds that Mr Oyberman was not entitled to YA as he was not enrolled in an approved course and did not meet the activity requirements of the Act. Given Mr Obyerman does not qualify for YA, the Tribunal standing in the shoes of the decision maker, can determine if he meets the special circumstances exemption for YA, in accordance with s 542H of the Act.
Do special circumstances exist to grant Mr Oyberman YA?
The expression ‘special circumstances’ has not been defined in s 542H of the Act or related legislation. However, the meaning of ‘special circumstances’ has been considered extensively by the Federal Court and the Tribunal. Numerous decisions have established that an individual’s circumstances must be sufficiently unusual, uncommon or exceptional so as to make their case different from the ordinary and otherwise special.
The Respondent took the Tribunal to the following decisions on what is required to establish special circumstances:
Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3, where the Tribunal stated:
An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J (as she was known then) said at 545:
The phrase "special circumstances", it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle's case (229), and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
Dranichnikov v Centrelink (2003) 75 ALD 134 at 148 [66], where the Full Court concluded:
Other cases which have considered analogous words such as "special reasons" has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 at 18 [33] where Judge Besanko said:
I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case.
The Respondent argued that Mr Oyberman's circumstances did not meet the requirements of special circumstances.
The Respondent submitted that there was insufficient evidence for the Tribunal to be satisfied that other religions do not have similar obligations — such that the Tribunal could find the Applicant’s religious obligations were “unusual, uncommon or out of the ordinary”.
The Respondent argued there was also insufficient evidence that Mr Oyberman could not have satisfied his religious obligation in some other way or at some other time. They argued there was no evidence on which the Tribunal could find Mr Oyberman was required to undertake the Diploma of Talmudic Studies at the Rabbinical College specifically.
The Respondent argued there was no evidence that Mr Oyberman was required to undertake the Diploma of Talmudic Studies prior to commencing his degree in Engineering. As such, the Respondent argued, there was also insufficient evidence that Mr Oyberman could not have exercised choice and control regarding how and when he fulfilled his religious obligation.
The Respondent referred the Tribunal to the Social Security (Special Circumstances Exemption to Youth Allowance Activity Test Guidelines) Instrument 2019 (the Instrument) which provides guidelines for the exercise of the discretion in s 542H(1) of the Act . While this Instrument does not provide an exhaustive definition, it sets out several situations that will be considered special circumstances for YA.
The Respondent argued the Instrument specifically notes special circumstances “beyond a person’s control” exist if:
(a)a major disruptive event affects the person’s home; and
(b)the event has a major disruptive consequence for the person.
Examples of such events are listed as flood, fire, earthquake, vandalism, and burglary.
It also provides that special circumstances “beyond a person’s control” exist if the person:
(a)is experiencing a major personal crisis; and
(b)the experience has a major disruptive consequence for the person.
Examples of this include the death of a family member, a breakdown of a relationship, homelessness, and domestic violence.
The Respondent submitted that Mr Oyberman’s decision to defer the commencement of his Engineering degree to undertake the Diploma of Talmudic Studies, and fulfil his religious obligation, is not analogous to the examples of special circumstances provided by this Instrument.
The Respondent contended that Mr Oyberman’s religious obligations were not circumstances that are unusual, uncommon or out of the ordinary, and therefore do not constitute special circumstances.
The Respondent contended that Mr Oyberman’s circumstances were not beyond his control, as it was his decision to undertake the Diploma of Talmudic Studies and there was no evidence before the Tribunal that Mr Oyberman did not have the capacity to change his circumstances, such as meeting his religious obligation in some other way or at some other time.
Mr Oyberman’s father contended that the Instrument uses the wording “includes, but not limited to” and therefore leaves flexibility for the Secretary to include the fundamental religious duty (which is beyond a person’s control), such as a Jewish religious education (for the reasonably limited period of study) into one of the listed special circumstances exemption categories. Mr Oyberman’s father observed that in accordance with Jewish Law, Jewish religious education is considered of no lesser importance than most of the other listed categories.
Mr Oyberman’s father argued strenuously that his son’s Jewish faith and religious obligation were beyond his control and that his son had no capacity to change them. His father observed that as his son was born to a Jewish mother and was given his name in accordance with Jewish Law on the eighth day during the ceremony of entering into the Holy Covenant with God, his need to undertake the Diploma of Talmudic studies was beyond his control.
Mr Oyberman’s father contended that his son’s fundamental religious duty has all the qualities of special circumstances as argued by the Respondent and argued his son’s situation was:
… exceptional, or they must have a particular quality of unusualness that permits them to be described as special, or ...it is sufficient to observe that it would require something to distinguish one case from others, to take it out of the usual or ordinary case, or it would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
Mr Oyberman’s father also argued:
(a)Jews became the only people in history to predicate their very survival on education, if this is not exceptional, unusual and uncommon than what is? It's unique!
(b)We are talking here not about a person's religious obligations in general, but about the specific and exceptional sacred fundamental obligation to study Torah and it is unique as no such obligation exists in any other religion.
(c)We are talking here about the very survival of the person as a Jew and Jews as a people – only this alone should permit the Applicant's circumstances to be described as special.
(d)Jews constitute less than 0.35% of the Australian population (according to ABS) and only a tiny portion of those, less than 0.35%, are doing three years of full-time face to face Talmud studies at any given time – it would be extremely unreasonable to consider such an education as common or ordinary for Australia.
(e)To deny a minimum essential level of benefits to an individual that will enable them to cover essential living costs just for choosing to fulfil his most sacred fundamental obligation to study Torah is unjust and unfair and out of the ordinary for Australia.
Mr Oyberman’s father argued the religious education was beyond his son’s control as he was required under Jewish law to undertake this study at this time, as a Jewish man is required to complete three years of full-time face-to-face Talmud studies before getting married at the age of 18 though due to the importance of Talmud studies, the marriage is allowed to be postponed until after completion of the study.
Mr Oyberman’s father argued his son had no choice in the matter to undertake his sacred religious studies and that Centerlink was blaming his son for choosing life while exercising his freedom of choice between life and death. Mr Oyberman’s father noted that “through the history of our people such attitude toward Jews was not uncommon in many places at the different times” but he didn’t think that it was appropriate in Australia nowadays. In Mr Oyberman’s father’s final submission to the Tribunal, he stated:
Meeting his religious obligation in some other way, or at some other time…
This suggestion could be compared with the suggestion to let somebody drive the car assuming that at some time he will learn Traffic Rules, how to read the maps and how to drive safely.
Alternatively, it could be compared with the suggesting somebody to jump on the plane and at some time during the flight decide where to go and what for.
We could assume that this is a normal way of thinking in Australia, but recently the Applicant received his Australian passport, which was accompanied by the Travel Smart Guide, containing the entire chapter called 'Before you go'
We would like to remind the Respondent here that the Applicant is currently just at the beginning of his life travel and learning 'Before you go as a Jew" chapter requires the substantial preparations.
We absolutely agree that the learning should lead to the profession, but our history tells us that skills alone cannot substitute for the moral qualities and in not so distant past we witnessed:
·how skilled scientists and engineers-built gas chambers;
·how skilled doctors poisoned children and experimented on children;
·how trained nurses killed babies;
·how graduates of higher educational institutions shot and burnt children and women;
·how Master and PHD educated lawyers developed and legislated The Final Solution Policy.
Therefore, we do not trust in education just for skills but start education of our children from helping them become human first.
Alternatively, Mr Oyberman’s father argued this issue could be brought to the attention of the Minister who has the power to amend the Guidelines as he and his son had been requesting for some time. Mr Oyberman’s father argued this reasonable request was still being ignored.
The Respondent contended that Mr Oyberman’s father’s request to have the matter brought to the attention of the relevant Minister was beyond the Tribunal’s jurisdiction. The Respondent referred the Tribunal to the matter of Mikhael where the Senior Member stated at [12]-[15]:
AMBIT OF TRIBUNAL’S POWER
However, this Tribunal’s role is to review the prior decision of the Social Security Appeals Tribunal and to arrive at the correct or preferable administrative decision. Where the law is clear there is only one correct decision and no other determination could be said to be preferable because it would be contrary to law. The Tribunal is bound by the Acts passed by parliament and by the ministerial determinations made by those persons given the power to declare them.
In this case there is no scope for discretionary decision-making by the Tribunal. It stands in the shoes of the original decision-maker and it has no wider powers. It is bound by the same statutory provisions and delegated legislation. If those provisions do not allow further discretionary latitude then there is no option for the Tribunal to do anything else but follow the law.
FINDINGS
In this instance, s 5D of the Student Assistance Act 1973 gives the Minister the power to make a Determination of what is a “tertiary course” for the purposes of that Act. In a convoluted way, the Amended Determination stipulates that only those Masters level courses listed in Schedule 3 are such “tertiary courses”. The Applicant’s course is not listed. Thus it is not a “tertiary course” within the meaning of the Act and he is not “undertaking qualifying study”.
The Applicant had hoped that this review would deal with the application by University of Wollongong for inclusion of his course as an “approved tertiary course” and deal with the merits of reasons of the Department for non-inclusion. The Tribunal disappointed those expectations, but endeavoured to explain the limited jurisdiction it had in reviewing the decision. The Applicant may have other recourse to the Freedom of Information Act or other approaches at a political level but the lawful decision of the Social Security Appeals Tribunal remains the foundation for the decision under review.

Part 2 of the Instrument sets out guidelines for the exercise of the Secretary’s power in subsection 542H(1) of the Act. Section 6 of the Act states:
Under subsection 542H(1) a person has a special circumstances exemption in respect of a period if the Secretary is satisfied that:
(a) special circumstances, beyond the person’s control, exist; and
(b) in those circumstances, it would be unreasonable to expect the person to satisfy the activity test for that period.
Sections 9-12 of the Instrument provide the circumstances which could be considered special:
(a)Major disruption to a person’s home; included but not limited to flood, fire, earthquake, vandalism, or burglary. Where the event has a major disruptive consequence to the person such as need to arrange alternative accommodations, replace significant household items, organise major home repairs or make insurance claims for damage to household items or more.
(b)Major personal crisis such as the death of a family member, breakdown of a relationship, homelessness or inability to obtain stable accommodation or domestic violence. Where the crisis has a major disruptive consequence for the person such as the need to arrange a funeral or make property arrangements for a deceased family member, the need to arrange alternative accommodation and move belongings from present accommodation, arrange for care of their child or the need to attend counselling.
(c)Carer duties where a family member is temporarily incapacitated due to illness or accident and requires full time care which a person is providing, and other ways of care are not available, and the person does not qualify for the carer payment.
(d)Serving on a jury.
(e)If a person is subject to a community service order requiring them to perform more than 20 hours of community service per week.
(f)If the person is a refugee.
The Tribunal also notes the Instrument defines the maximum exemption period for each type of special circumstances, for example, s 9(3) provides:
In the special circumstances mentioned in subsection (1), it may be unreasonable to expect the person to satisfy the activity test:
(a) for a period of up to13 weeks, starting when the person begins to provide the care; and
(b) for a further period of up to 13 weeks, if, at the end of the initial 13 week period the special circumstances remain unchanged.
The Tribunal has not found that special circumstances apply to Mr Oyberman as envisaged by the Act or Instrument.
The Tribunal noted the Act defined a maximum period of 13 weeks for an exemption to apply, as it would be unreasonable to expect an individual to satisfy the activity test for a period of 13 weeks. Mr Oyberman’s father is correct that the Act allows for this period to be extended, however, the Tribunal does not consider the legislators contemplated that an exemption would be extended for one year.
The Tribunal considers that if an individual’s circumstances were such that the period needed to be extended for longer than 13 weeks, they would be transitioned to a more appropriate allowance such as a Disability Support Pension or Sickness Allowance as their circumstances would not be considered temporary.
The Tribunal considers that Mr Oyberman’s situation is not a consequence of a major disruption that has rendered him incapable of fulfilling the activity test. He is not facing circumstances which make it unreasonable to fulfil the activity test, as he was able to complete his course.
The Tribunal considers that Mr Oyberman’s father made a compelling case that his son’s circumstances were beyond his control as, having been born to a Jewish mother, he was therefore Jewish. The Tribunal does not dispute Mr Oyberman’s contention that his son had no choice in the matter to undertake his scared religious studies at this time in his life in accordance with Jewish Law.
However, no evidence was provided to substantiate that all those of the Jewish faith were required to observe this obligation full-time immediately after they had completed their secondary education. Nor was evidence provided to support a finding that other faiths did not also require such stringent observance at various periods in people’s faith journey’s, nor that there were no other methods of study by which Mr Oyberman could satisfy his religious obligations.
While the Tribunal does not dispute Mr Oyberman had a requirement to fulfil his religious education in accordance with his beliefs, the Tribunal does not consider his fulfilment of his religious obligations were a circumstance contemplated by Parliament to be a major disruption to his life and beyond his control.
Section 542H of the Act outlines a two-step process:
(a)Firstly, the special circumstance must be beyond the person control; and
(b)Secondly, it would be unreasonable in the circumstances to expect the person to satisfy the activity test for that period.
The Tribunal did not consider Mr Oyberman had satisfied either limb of the test, as Mr Oyberman’s Jewish faith could not be considered a major personal crisis or event which had a major disruptive consequence, as envisioned by the Instrument, for it to be considered unreasonable to expect him to satisfy the activity test for YA for a period of 12 months.
Does qualification for YA exist to grant Mr Oyberman YA under COVID-19 measures?
Mr Oyberman’s father argued that as COVID-19 had caused an interruption of the Diploma of Talmudic Studies course, his son had every right to withdraw from the course and register as a job seeker. As such, he argued, Mr Oyberman could have been paid YA as he would have been exempt from the activity requirement (at least till the end of November 2020 for Victoria).
Mr Oyberman’s father argued that as his son had chosen to stay in the course in order to fulfill his religious obligation instead of registering as a job seeker and doing nothing, his son had been punished financially. He described this as unjust and unfair by any rational measure and argued that it defied common sense.
Mr Oyberman’s father advised the Tribunal that he was not arguing that his son qualified for YA under the s 540BA of the Act, but was merely pointing out the unfairness of this situation as his son would have been exempt from the activity requirement had he sought YA as a job seeker at that time. He argued it was fundamentally unfair that his son didn’t receive YA because he didn’t satisfy the activity test while undertaking the Diploma of Talmudic Studies course, when there was no activity requirement for the huge number of people who were doing nothing at the time.
The Respondent contended that during the qualification period Mr Oyberman was not qualified for YA under s 540BA of the Act, as he had not become unemployed due to the adverse economic effects of COVID-19.
The Tribunal finds there is no dispute in respect of Mr Oyberman’s qualification for YA under section 540BA as his father acknowledges that his son did not qualify for YA under this provision. The Tribunal understands Mr Oyberman was merely highlighting the injustice of his son’s situation, in which he was not entitled to YA while he was studying a course he was obliged by his faith to undertake at this time of his life, but others were being paid to stay at home.
The Tribunal finds that Mr Oyberman did not qualify for YA under s 540BA of the Act, as he had not become unemployed as a result of the adverse economic effects of COVID-19, nor was he required to quarantine or self-isolate as a result of advice from a Commonwealth or State health professional because of COVID-19 or caring for a family or household member who was required to quarantine or self-isolate during that period.
CONCLUSION
The Tribunal, based on all the evidence, finds that Mr Oyberman did not satisfy the requirements to be eligible for YA, nor that his circumstances were so unusual that special circumstances enlivened an exemption to the activity to test to enable his qualification.
The Tribunal was very appreciative of the informative materials provided by Mr Oyberman’s father and thanks him for his submissions on the Jewish faith.
As the Tribunal indicated, it can appreciate Mr Oyberman’s father’s confusion over why the Diploma of Talmudic Studies course is no longer approved for YA, but the Tribunal can only apply the law as it stands at the time of determination. The Tribunal also notes the legislation changed two years prior to Mr Oyberman applying to undertake the course, and that the Rabbinical College was aware that students would not qualify for YA when Mr Oyberman enrolled in the Diploma of Talmudic Studies.
The Tribunal agrees with Mr Oyberman’s assertion that this matter could be resolved by the Minister by changing the legislation or approving the course for YA if they believe the course meets the requirements of the legislation. Additionally, the College could seek to have the course approved again for the purposes of YA. However, it is of no consequence to this determination as neither of these steps have been taken and both are beyond the Tribunal’s ambit of power.
DECISION
The decision under review is affirmed.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke AO, Member

..........[sgd]........................
Associate
Dated: 5 October 2021

Date of hearing: 29 June 2021

Date of final submission: 26 August 2021

Representative for the Applicant: Mr Mark Oyberman (father)

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Kellie Latta

Sparke Helmore Lawyers

[2021] AATA 3535

5 October 2021

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

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Procedural Fairness

Statutory Construction

Appeal

Standing

Date of hearing:	29 June 2021
Date of final submission:	26 August 2021
Representative for the Applicant:	Mr Mark Oyberman (father)
Advocate for the Respondent: Solicitors for the Respondent:	Ms Kellie Latta Sparke Helmore Lawyers