Shaoshan Xie and Secretary, Department of Education, Employment and Workplace Relations
[2013] AATA 506
[2013] AATA 506
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0359
Re
Shaoshan Xie
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 16 July 2013 Date of written reasons 17 July 2013 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – Language Literacy and Numeracy Program – Language Literacy and Numeracy Supplement – whether applicant qualified for Supplement after transfer to Adult Migrant English Program – meaning of the Department of State responsible for education and training – decision under review affirmed
LEGISLATION
Social Security Act 1991 ss 1048 and 1049
SECONDARY MATERIALS
Administrative Arrangements Order, 9 February 2012
Department of Education, Employment and Workplace Relations, Program Guidelines for the Language, Literacy and Numeracy Program 2010-2013
REASONS FOR DECISION
Senior Member J F Toohey
17 July 2013
These written reasons reflect reasons given orally at the conclusion of the hearing on 16 July 2013. Ms Xie, who was overseas at the time, was represented at the hearing by her husband, Ren De Liang.
BACKGROUND
In June 2012, Ms Shaoshan Xie was receiving Newstart Allowance. On 12 June 2012, she started a course in the Language Literacy and Numeracy Program (LLNP) with a view to improving her employment prospects. The LLNP is administered by the Department of Employment, Education and Workplace Relations (DEEWR).
A person who is receiving a designated social security payment and who attends a course included in the language, literacy and numeracy program administered by the Department of State responsible for education and training, qualifies for a language, literacy and numeracy supplement (LLN Supplement): s 1048 of the Social Security Act1991 (the Act).
As Newstart Allowance is a designated social security payment for the purposes of s 1048, and as DEEWR is the Department of State responsible for education and training, Ms Xie qualified for an LLN Supplement from 12 June 2012 when she started the LLNP.
Several weeks into the course, Ms Xie found it too difficult. On 10 July 2012, she transferred to the Adult Migrant English Program (AMEP) at Macquarie Community College. Certificates issued by the College show Ms Xie was given a Statement of Attainment 1 in Spoken and Written English in September 2012, and a Certificate 1 in Spoken and Written English in December 2012.
The AMEP is administered by the Department of Immigration and Citizenship and is part of the Government’s settlement program for eligible migrants.
When she transferred to the AMEP, Centrelink cancelled Ms Xie’s LLN Supplement on the ground that the AMEP is not administered by the Department of State responsible for education and training. That decision was affirmed by the Social Security Appeals Tribunal in December 2012.
THE ISSUE
I have to decide whether the decision to cancel Ms Xie’s LLN Supplement was correct.
THE LAW
Section 1048 of the Act provides that a person is qualified to receive an LLN Supplement in any fortnight if:
(a)the person is receiving a designated social security payment in respect of that fortnight; and
(b)the Secretary is satisfied that, on a day during that fortnight, the person was attending a course included in the language, literacy and numeracy program administered by the Department of State responsible for education and training.
WHICH IS THE “DEPARTMENT OF STATE RESPONSIBLE FOR EDUCATION AND TRAINING”?
The Act does not specify which Department of State is responsible for education and training. However, the Administrative Arrangements Order signed by the Governor General on 9 February 2012 shows the responsibilities of each Commonwealth Government Department and the legislation for which each Minister was responsible at the time Ms Xie was being paid an LLN Supplement.
DEEWR was responsible for matters including ”[e]ducation and training transitions, policy and programs”. The legislation for which the Minister was responsible includes:
Social Security Act 1991, insofar as it relates to … Newstart Allowance … and any other payment, allowance or supplement inso faras that payment, allowance or supplement relates to persons receiving … Newstart Allowance …
By the same Administrative Arrangements Order, the Department of Immigration and Citizenship was responsible for: entry, stay and departure arrangements for non-citizens; border immigration control; arrangements of the settlement of migrants and humanitarian entrants, other than migrant education; citizenship; and ethnic affairs and multicultural affairs.
It is clear from the Administrative Arrangements Order that the Government has given responsibility for education and training to DEEWR. It is also clear from Program Guidelines for the Language, Literacy and Numeracy Program 2010-2013 issued by DEEWR in July 2010, which show the LLNP is managed by DEEWR and set out DEEWR’s roles and responsibilities in relation to the program.
DOES ATTENDANCE AT THE AMEP QUALIFY A PERSON FOR LLN SUPPLEMENT?
The website of the Department of Immigration and Citizenship shows:
The AMEP is the Australian Government's largest settlement program. It has been administered by the Department of Immigration and Citizenship and its predecessor departments since 1948.
…
The Immigration (Education) Act 1971 (the Act) and the Immigration (Education) Regulations 1992 provide the legislative basis for the AMEP. The program supports the government's social inclusion agenda through the provision of free settlement focused English courses for eligible migrants and humanitarian entrants who do not have functional English.
Mr Liang submitted on behalf of Ms Xie that, because the Administrative Arrangements Order shows that the Minister for Immigration and Citizenship is responsible is the Immigration (Education) Act1971, and because the AMEP is a form of education for migrants, Ms Xie should be entitled to the LLN Supplement. However, that is not a correct reading of the legislation.
It is clear from s 1048 that a person does not qualify for the LLN Supplement because she or he is undertaking any language, literacy and numeracy program administered by any Department of State. It must be:
a course included in the language, literacy and numeracy program administered by the Department of State responsible for education and training. (Emphasis added.)
It is also clear from the DEEWR Program guidelines that:
LLNP clients may not undertake the LLNP concurrently with the Adult Migrant English Program.
Mr Liang also submitted that s 1049(4) of the Act means that Ms Xie qualified for the LLN Supplement. Again, that is not a correct reading of the legislation. Section 1049 sets out circumstances in which an LLN Supplement is not payable. It states:
For the avoidance of doubt, language, literacy and numeracy supplement is payable in respect of a person's attendance at a language, literacy or numeracy course whether that attendance is voluntary or is required under the provisions of, or of an agreement made under, any other provision of this Act.
All that s 1049(4) does it make clear that eligibility for LLN Supplement is not affected by whether a person’s attendance at a course is voluntary or compulsory.
CONCLUSION
While Ms Xie was attending a course included in the language, literacy and numeracy program administered by the DEEWR (and receiving a designated payment), she qualified for LLN Supplement. Once she transferred to the AMEP, she was no longer attending a course in the program administered by DEEWR and she no longer satisfied s 1048.
I affirm the decision under review.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. .......[sgd].................................................................
Associate
Dated 17 July 2013
Date(s) of hearing 16 July 2013 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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