SUSAN DORRESTEYN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2010] AATA 435
•11 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 435
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5371
GENERAL ADMINISTRATIVE DIVISION ) Re SUSAN DORRESTEYN Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr M Denovan, Member Date11 June 2010
PlaceBrisbane
Decision The Tribunal remits the matter to the respondent for the purpose of determining whether pursuant to Part 2.11A of the Act, the applicant qualified for Austudy payment from 2 March 2009 to 24 May 2009.
...............[Sgd]...............................
Member
CATCHWORDS
SOCIAL SECURITY – Austudy payment – Application of the portability period – Whether student receiving Austudy payment has to remain in Australia for a minimum of 13 weeks between each absence – Matter remitted.
Acts Interpretation Act 1901 (Cth) s13
Social Security Act 1991 (Cth) s 1218, Pt 2.11A, Pt 4.2
Social Security (Administration) Act 1999 (Cth)
REASONS FOR DECISION
11 June 2010 Dr M Denovan, Member BACKGROUND
1. Susan Dorresteyn, the applicant, was in receipt of Austudy payment when she departed Australia to visit her family in New Zealand on 23 November 2008. Because she remained outside of Australia for more than thirteen weeks, Centrelink, the respondent, cancelled her Austudy payment on 23 February 2009.
2. Ms Dorresteyn returned to Australia on 26 February 2009 and the respondent reinstated her Austudy payment.
3. On 2 March 2009, Ms Dorresteyn’s father passed away. She departed Australia on that same day. Ms Dorresteyn remained in New Zealand until 24 May 2009.
4. On 17 June 2009, a delegate of Centrelink decided not to pay Ms Dorresteyn Austudy during the period 2 March 2009 to 24 May 2009. That decision was affirmed by an authorised review officer (ARO) and the Social Security Appeals Tribunal (SSAT). Ms Dorresteyn applied for review by the Administrative Appeals Tribunal (the AAT) on 9 November 2009.
LEGISLATIVE SCHEME AND ISSUE
5. The rules relating to eligibility for Austudy payment are contained in the Social Security Act 1999 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
6. The Act allows people in receipt of Austudy to continue to receive that payment whilst not in Australia for a period of 13 weeks. This is called the portability period.
7. At the hearing, Mr Guthrie for the respondent contended that the effect of s 1218(3) of the Act is that Ms Dorresteyn was required to remain in Australia for 13 weeks after she returned on 26 February 2009, otherwise she is deemed to have been continually absent from Australia from the date of her first departure, that is 23 November 2008.
8. The Act gives the Secretary discretion to extend that portability period in circumstances where the applicant is prevented from returning to Australia. Such circumstances include serious illness, hospitalisation or death of a family member. Mr Guthrie contended that this discretion cannot be applied in this case, because by returning to Australia for a brief period in February 2009 Ms Dorresteyn demonstrated that she was not physically prevented from returning to Australia during her period of absence.
9. Ms Dorresteyn argued that Centrelink gave her wrong information and had she been advised correctly she would not have remained in New Zealand on the second occasion for such a long period. She also contended that the circumstances of her father’s death and mother’s illness are grounds for the portability period to be extended.
10. The issue to be determined is whether Ms Dorresteyn may be paid Austudy for the period 2 March 2009 to 24 May 2009.
Can Ms Dorresteyn be paid Austudy for the period 2 March 2009 to 24 May 2009?
11. In the decision under review, the reason given for not paying Ms Dorresteyn Austudy from 2 March 2009 to 24 May 2009 was that she left Australia within 13 weeks of returning to Australia. The original decision maker, as well as the ARO, appears to have considered that pursuant to s 1218(3) the applicant was deemed to have taken a continued absence. The SSAT concurred with this reasoning and affirmed the decision for the same reason.
12. The first consideration in deciding this matter is whether, on proper construction of the Act, s 1218 imposes a requirement on those social security recipients identified in s 1218(1) to remain in Australia for a minimum of 13 weeks between each absence.
13.Section 1218 reads as follows:
CHAPTER 4 -- International agreements and portability
PART 4.2 ---- OVEARSEAS PORTABILITY
Division 2 -- Portability of social security payments
Subdivision B -- Exceptions to Subdivision A rules
s 1218
EXCEPTION--FULL-TIME STUDENTS OUTSIDE AUSTRALIA FOR PURPOSES OF AUSTRALIAN COURSE
(1) This section applies if, immediately before the period of absence commenced:
(a)the person was undertaking full time study as part of a course of education at an educational institution; and
(b)the person was receiving disability support pension, wife pension, carer payment, widow B pension, widow allowance, parenting payment, youth allowance, austudy payment or partner allowance.
(2)The person's right to continue to be paid disability support pension, wife pension, carer payment, widow B pension, widow allowance, parenting payment, youth allowance, austudy payment or partner allowance is not affected merely by the person's absence throughout so much of the period of absence as is for the purpose of undertaking studies that form part of the course of education.
(3)If the person returns to Australia for a period of 13 weeks or less, the return is taken not affect the continuity of the period of absence.
14. Part 4.2 of the Act is headed ‘Overseas Portability’. Division 1 of that Part deals with preliminary matters. Division 2 is headed ‘Portability of social security payments’. Subdivisions A and B of Division 2 are respectively headed ‘Basic portability provisions’, and ‘Exceptions to Subdivision A rules’.
15. By virtue of s 13 of the Acts Interpretation Act 1901 (Cth) headings to Parts and Divisions are part of the Act and cannot simply be ignored. Section 1218 is part of Division 2, and is therefore a section dealing with an exemption to the basic portability provisions. The title of s 1218 clearly reflects the subject matter of that exemption. It deals with exemptions to the portability rules for students that are outside of Australia for the purposes of an Australian course. Whilst titles to sections are not part of the Act, s 1218 clearly has a particular purpose. It creates an exemption for students who are studying outside of Australia. Section 1218 allows such students to be granted portability for a period longer than the maximum portability they would otherwise be entitled to pursuant to s 1217. Placed in context, I consider s 1218(3) allows for a student who has been granted such an exemption to portability, to return to Australia for less than 13 weeks without affecting the extended portability entitlement in relation to his or her overseas study.
16. The Guide to Social Security Law, at 7.1.2.20 gives the following example of the application of s 1218(3).
Jon is qualified for YA and is studying a Bachelor of Arts degree full-time at an approved course of education in Australia. He finishes studying in November and remains qualified for YA over the summer break as he intends to go back and finish his Australian course next year. During his hiatus period and while still qualified as a full-time student for YA in relation to his course in Australia he decides to undertake a number of subjects at an overseas university. He is able to provide evidence from his Australian university that these subjects can be credited towards his Australian course. In order to complete these subjects he has been granted a 16 week portability period. After 4 weeks overseas he returns to Australia for one week and then departs overseas again. Because Jon returned to Australia for less than 13 weeks his portability entitlement in relation to his overseas study period is not affected. He still has 11 weeks left before his portability period in relation to his overseas study absence finishes.
17. In my view that is the appropriate application of subsection 1218(3). Ms Dorresteyn was outside of Australia from 23 November 2008 for the purpose of a family visit. She was not outside of Australia for the purpose of an Australian course. Section 1218 does not apply to her.
18. Even if Ms Dorresteyn was outside of Australia for the purpose of an Australian course, the interpretation given to s 1218(3) by the respondent would result in the section having a scope much broader than simply creating an exemption to the subdivision rules. It would create a restraint on the interval between absences from Australia on all social security recipients listed in s 1218(b) who chose to study full time. In effect it creates an absurd and unreasonable situation. A person in receipt of any of the benefits listed in s 1218(1)(b) would be allowed to leave Australia as often as they desired without detriment[1], however the same person on the same benefits who was also engaged in full time study would be required to remain in Australia for 13 weeks after each return. I fail to see how such an application would serve any purpose.
[1] Subject to limitations of absence pursuant to s 1217
19. That this was not the intention of the subdivision I think is obvious when the history of the Act is considered. The criteria a person needs to satisfy to be granted Austudy is set out in Chapter 2 of the Act. Prior to amendments to the Act in 2000, s 571 provided the general rule that to receive Austudy, a person must be an Australian resident, and, in Australia for the period. Provision for absences of up to 13 weeks was provided. In 2000, amendments for the purpose of simplifying international payments relating to portability were made to the Act[2]. The effect of those amendments was that for the purposes of Austudy, the requirement that a person be "in Australia" was removed, while the requirement that a person be an Australian resident was retained, in a manner consistent with other payments under the Act.
[2] Explanatory Memorandum accompanying the Social Security & Veteran’s Entitlements Legislation Amendment (Miscellaneous Matters) Bill 2000, at 18
20. Further amendments to s 1218 of the Act in 2009 replaced “youth allowance or austudy payment” with “disability support pension, wife pension, carer payment, widow B pension, widow allowance, parenting payment, youth allowance, austudy payment or partner allowance”. According to the explanatory memorandum, the purpose of this amendment was to allow recipients of these payments to use this exception, which was previously only available to youth allowance and austudy recipients. It was not suggested in the memoranda that the amendment intended to impose a restriction on how often these same recipients would be allowed to leave Australia.
21. To apply s 1218 in the way the respondent contends would have the effect of reintroducing the requirement that Austudy recipients are in Australia, which was removed by the 2000 amendments. It would also effectively mean that the amendments made to the Act in 2009 placed new restrictions on recipients of disability support pension, wife pension, carer payment, widow B pension, widow allowance, parenting payment, or partner allowance who choose to undertake full time study.
22. I conclude that Centrelink inappropriately applied s 1218 to the circumstances of this case. Ms Dorresteyn did not cease to qualify for Austudy simply because she departed Australia on 2 March 2009. For Ms Dorresteyn to be entitled to Austudy she would have to satisfy the requirements set out in Part 2.11A of the Act. There is insufficient evidence before me to make a decision as to whether Ms Dorresteyn would meet these requirements. Centrelink records indicate that Ms Dorresteyn may have been intending to return to New Zealand permanently when she departed in December 2008. It is not clear to me whether she meets the residency requirements during the period in question. I further note that there is some uncertainty about her participation in full time study during the period encompassed by the decision under review.
23. I remit the matter to the respondent for the purpose of determining whether pursuant to Part 2.11A of the Act, Ms Dorresteyn qualified for Austudy payment from 2 March 2009 to 24 May 2009.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: .......................[Sgd]......................................................
Kate Slack, Research AssociateDate/s of Hearing 24 May 2010
Date of Decision 11 June 2010
The Applicant was self represented
For the Respondent Mr Joe Guthrie, departmental advocate
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