Primakova and Secretary, Department of Education, Science and Training

[2007] AATA 1524

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1524

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1423

GENERAL ADMINISTATIVE DIVISION		)
Re		ELENA PRIMAKOVA

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date5 July 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............[Sgd]..........

Senior Member         

CATCHWORDS

SOCIAL SECURITY – austudy payment – austudy payments cancelled – applicant ceased full time study – allowable study time exceed – decision affirmed.

Social Security Act 1991 Act ss 568, 569H

Social Security (Administration) Act1999 s 12

WRITTEN REASONS FOR ORAL DECISION

9 July 2007  M J Carstairs, Senior Member

1.      Mrs Elena Primakova came to Australia from Russia, and has had permanent residence since 1999.  She received austudy payments from March 2002 until September 2005 for various studies, including English language courses, undertaken during that period.  Centrelink cancelled Mrs Primakova’s austudy payments on 8 September 2005.  

2.      The respondent’s case is that there were two reasons for cancellation: first, at or about the time of cancellation, Mrs Primakova ceased to be a full time student; secondly, Mrs Primakova had exceeded the allowable time limits during which she could receive austudy.  

3.      The respondent contends that in those circumstances cancellation was the correct decision to make.  I agree.  At the hearing I gave oral reasons for affirming the cancellation decision, and Mrs Primakova requested written reasons.

ISSUE

4.      The sole issue was whether Mrs Primakova ceased to be qualified for austudy payment on 8 September 2005, and whether it was the correct decision to cancel Mrs Primakova’s austudy payments.  Mrs Primakova raised a number of issues about her treatment at the TAFE College relating to her studies, but these are not matters for me to consider. 

5.      I took into account that Mrs Primakova is disputing the decision because the cancellation left her without social security payments and this is a significant concern.  I also take into account Mrs Primakova’s contention that someone should have alerted her earlier in the year that her allowable study period was to expire that year. 

BACKGROUND

6.      Mrs Primakova applied for austudy on 14 February 2002 for a Bachelor of Education at the University of Queensland.  She was granted austudy on 8 March 2002.  Mrs Primakova commenced a course called Certificate IV in Spoken and Written English at South Bank TAFE in April 2005 and completed that course on 7 September 2005.  The course is approved for payment of austudy and ran for a period of 20 weeks.   She was a fulltime student and was paid austudy for that time.

7.      A document prepared by Ms T Piotrkowski from Southbank TAFE Institute (exhibit R1) confirmed Mrs Primakova’s enrolment status over the relevant period.  These details are not disputed.  These records confirm that Mrs Primakova completed the course Certificate III in Spoken and Written English on 12 April 2005, and that Certificate IV in Spoken and Written English, completed in September 2005 was Mrs Primakova’s last full-time attendance. 

8.      Mrs Primakova wished to continue further English studies, but it seems that the only available course was part time.  This was always going to be a significant problem in terms of her Austudy payments.

9.      Centrelink (by letter dated 19 August 2005) had given notice that there might be some problem with Mrs Primakova’s austudy.  That letter stated …Your austudy has been suspended because you have not completed your course within the specified time (T4).  A further letter on 1 September 2005 asked Mrs Primakova to provide details about her current enrolment and dates when the study would cease (T10).  A  letter (also dated 1 September 2005) requested that Mrs Primakova provide an explanation from her teacher about why her studies were extended (T9). 

10.     This last correspondence seems to have generated a contact between Centrelink and a person named Lucy at the TAFE Institute.  An electronic file note records that Lucy telephoned Centrelink and gave information relating to Mrs Primakova’s enrolment.  The note of that telephone conversation states: Advised CUS will be part time, as the extension cannot be offered FT.  Lucy also advised that she thinks the course CUS is doing is NOT austudy approved, as no-one else in the class is able to get it… (T12, p 60).  It was also around this time that Centrelink told Mrs Primakova that she would need to apply for newstart allowance.  This is an issue to which I will return later.  But the first consideration is the question of proper qualification for an austudy payment and for this I turn now to the relevant legislation.  

CONSIDERATION

11.     Two provisions central in this matter are contained in the Social Security Act 1991 (the Act).  Section 568 of the Act provides that a person will be qualified if, relevantly, they satisfy the activity test – in this case, that is that Mrs Primakova was studying full time.  The second provision is contained in s 569H, which provides for the progress rules for tertiary students.  It is quite clear under the legislation that the primary requirement is that a person must be studying full time. Another requirement is that they progress their studies and indeed that studies come to an end at some point.  Once the TAFE (via “Lucy”) notified Centrelink that Mrs Primakova had used up her allowable time, it was clearly the correct decision to cancel her payments.  Furthermore, Mrs Primakova simply was not studying since 8 September 2005 and whatever interpersonal problems she ran into at TAFE in relation to continuing her studies, they were matters to do with TAFE, not Centrelink payments.  The fact remains that she was not enrolled thereafter.

12.     Once Mrs Primakova had completed the course in September 2005, s 569H of the Act provided that she could not be further paid, because she had exceeded the allowable study time.

13.     It is important to observe that Mrs Primakova was provided with repeated advice by Centrelink officers that she might apply for newstart allowance.   I note in that regard that Centrelink contact officers were mindful of her distress, and her difficulties with English.  There was reference of Mrs Primakova being referred to a social worker.  It seems that every encouragement was made to offer alternative assistance.  It was clear from the records of contact that all advice to Mrs Primakova to apply for another kind of payment was refused.  I refer to the records of contact recorded by computer at pages 56, 57, 59 and 64 of the T documents, wherein Mrs Primakova was invited to claim for newstart allowance.  Without going into great detail, in essence those records indicate that Mrs Primakova said she was not a jobseeker and did not want to receive newstart allowance.  She also indicated that she was not able to look for work in Australia – but clearly her permanent residency status in Australia suggests that this is simply not true.

14.     Mrs Primakova disputed at the hearing that she was given any advice in 2005 to apply for newstart allowance.  However there are numerous records made by different Centrelink officers on different dates which indicate otherwise.  I do not accept that she was not told.  Mrs Primakova’s evidence was that even in 2007 she refuses to claim newstart allowance for reasons that include that Centrelink will not guarantee her a job, and because she should be granted social security in her own right without reference to her husband’s income.  That clearly is not the law.  Her evidence indicated also that she would prefer to be paid as a student rather than as a job seeker. 

15. I refer to these matters because there is provision in s 12 of the Social Security Administration Act 1999 (the Administration Act) to allow transfer between payment types and might in this case have allowed a transfer from Austudy to newstart allowance - however this is only where the person is qualified for the other payment. To qualify for payment for newstart allowance a person must be actively seeking work. Mrs Primakova has indicated in her repeated refusals to claim newstart that she would not be willing to undertake the obligations of that payment. So hers is not a case in which the provisions of s 12 of the Administration Act would or should be applied.

16.     The only decision that correctly could be made at September 2005 was that Mrs Primakova’s austudy should be cancelled. 

DECISION

17.     The decision under review is affirmed

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed          Ms M J Brazier       
  Associate

Dates of Hearing  5 July 2007
Date of Decision  5 July 2007
Date of written reasons             9 July 2007
The Applicant was self represented, with the assistance of interpreter in the Russian language, Mr V Nekliaev
Solicitor for the Respondent    Mr R McQuinlan