Secretary, Department of Employment, Education, Training and Youth Affairs v Tran, Truyen Kien

[1997] FCA 810

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - application for AUSTUDY benefit - whether application for AUSTUDY can be considered where it is lodged after 31 December of the year for which application for payment of the benefit is made

Student and Youth Assistance Act 1973  ss 7, 304
AUSTUDY Regulations  regs 56, 58
Federal Court of Australia Act  1976 s 43

SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION TRAINING AND YOUTH AFFAIRS v TRUYEN KIEN TRAN

No. VG 3 of 1997

MARSHALL J
MELBOURNE
13 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)  VG 3 of 1997
)
GENERAL DIVISION	)

BETWEEN:	SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION TRAINING AND YOUTH AFFAIRS Appellant
AND:	TRUYEN KIEN TRAN Respondent

JUDGE:	MARSHALL J
PLACE:	MELBOURNE
DATED:	13 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal is allowed.

1. The decision of the Administrative Appeals Tribunal of 6 December 1996 is set aside and in lieu thereof the decision of the Social Security Appeals Tribunal of 27 June 1996 is affirmed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)  VG 3 of 1997
)
GENERAL DIVISION	)

BETWEEN:	SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION TRAINING AND YOUTH AFFAIRS Appellant
AND:	TRUYEN KIEN TRAN Respondent

JUDGE:	MARSHALL J
PLACE:	MELBOURNE
DATED:	13 AUGUST 1997

REASONS FOR JUDGMENT

This mater is an appeal from a decision of the Administrative Appeals Tribunal (“AAT”) constituted by Mr James Brassil.  The appellant is the Secretary of the Department of Employment, Education, Training and Youth Affairs (“the Department”).  The respondent is Truyen Kien Tran (Mr Tran) who at the material time was a secondary school student at Heather Hill Secondary College in Springvale.  On 6 December 1996 the AAT set aside a decision of the Social Security Appeals Tribunal (“SSAT”) which had affirmed a decision of an officer of the Department refusing to pay Mr Tran an AUSTUDY benefit for the period 20 September 1995 to 31 December 1995.

Mr Tran celebrated his sixteenth birthday on 20 September 1995.  Until that day, his family received a family allowance in respect of him.  On 20 September 1996 those payments ceased.  Shortly thereafter, Mr Tran’s father (Mr Cuong Tran) sent a form to a Government Department in an effort to ensure that some form of benefit was payable in respect of his son.  He was unable to recall whether the form was an application for AUSTUDY or to which Department the form was sent.

On 23 January 1996, Mr Cuong Tran lodged an application for AUSTUDY in respect of Mr Tran.  The application was granted and payment was made with effect from 1 January 1996.  Mr Cuong Tran also sought payment from the Department in respect of the period 20 September 1995 to 31 December 1995.  This request was denied.  The denial was affirmed on internal review within the Department.

The short point for determination in this matter is whether the Department was empowered to consider the application for AUSTUDY with respect to the period 20 September 1995 to 31 December 1995.  Section 7 of the Student and Youth Assistance Act 1973 (“the Act”) empowers the Secretary of the Department to grant AUSTUDY benefits.  Sub-section (2) thereof provides as follows:

“Without limiting the generality of matters that may be dealt with by the regulations the regulations may:

(a)specify the benefits that may be granted under this Part; and

(b)specify circumstances in which benefits are not payable under this Part.”

Regulation 58 of the AUSTUDY Regulations provides as follows:

“58.     (1)       Unless subregulation (3), (4) or (5) applies, an application relating to a type of course listed in the following table must be lodged by the closing date in the year in which application is made listed opposite that type of course in the table:

Type of course

Closing date

full year course beginning
- before 1 July
- after 30 June
short course

late starting course

31 March
31 July
28 days after the course starts
28 days after the course starts

(2)      If an application is lodged after the appropriate closing date, AUSTUDY is only payable for the period after it has been lodged.

(3)      If a student becomes qualified to get AUSTUDY during the year, then

(a)an application must be lodged within 4 weeks afterwards (unless the appropriate closing date is later); and

(b)if the application is lodged after then, AUSTUDY is only payable for the period after it has been lodged.

(4)      However, an application can be considered if the student has taken reasonable steps to ensure that it would be lodged in time.

(5)      Further, an application can still be considered if the student lodges it as soon as practicable after he or she is no longer prevented from doing so by circumstances beyond his or her control.

(6)      However, an application cannot be considered if it is lodged after 31 December in the year for which the application was made.”

Regulation 56 provides that:

“56.     A student can apply for AUSTUDY only by:
(a)      filling in and signing the AUSTUDY application form approved by   the Secretary, and
(b)      lodging the form at any office of the Department.”

In 1995 no application for a relevant benefit was lodged at an office of the Department on behalf of Mr Tran.  Therefore, subregulation 58(6) applies to compel the Secretary not to consider an application in respect of a period in 1995 made by him.  Subregulation 58(6) applies so that the inquiries which may be prompted by subregulations (4) and (5) become irrelevant.  Sub-regulation 58 (6) provides a mandatory time limit for the receipt of applications in the context of calendar years.  Nothing in the Act or the Regulations permits the Secretary to grant an extension of time within which to enable her or him to consider such an application.  The provision is analogous to Regulation 43E of the Migration (Review) (1993) Regulations considered in Cuong Van Nguyen v M W Gerkens, Refugee Review Tribunal, unreported, Full Court, 24 April 1997.

In my view the AAT fell into error in considering that s 304 of the Act provided a basis for the Secretary to consider an application for an extension of time within which to consider the application for an AUSTUDY benefit by Mr Tran in respect of 1995.  That section permits a person to seek internal Departmental review of an original decision within the Department to reject an application.  An application for such internal review is subject to a time limit of three months or “within such longer period as the Secretary, in special circumstances, allows, after the making of the decision”.

Section 304 of the Act does not provide a power for the Secretary or any other officer of the Department to extend the time within which an application for an AUSTUDY benefit may be made in circumstances where the benefit sought is in respect of a calendar year which has expired.

Consequently the Court will order as follows:

1. The appeal is allowed.

1. The decision of the Administrative Appeals Tribunal of 6 December 1996 is set aside and in lieu thereof the decision of the Social Security Appeals Tribunal of 27 June 1996 is affirmed.

The Secretary of the Department applied for a costs order against Mr Tran. Section 43(2) Federal Court of Australia Act 1976 provides that:

“Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.”

There is nothing in any other Act which compels me to order that costs be paid by Mr Tran as the unsuccessful respondent to the appeal.

In my view this is not an appropriate case for an order of costs against Mr Tran.  There was a public interest consideration in the appeal and it has consequences beyond the facts of this case.  Mr Tran finds himself as the unsuccessful respondent to this appeal by no fault of his own.  I make no order as to costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:            13 August 1997

Counsel for the Appellant:	Mr R Frazzetto
Solicitor for the Appellant:	Australian Government Solicitor
Representative for the Respondent	Mr Cuong Tran, the respondent’s father
Date of Hearing:	13 August 1997
Date of Judgment:	13 August 1997