THOMAS BERGHUIS and SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, SCIENCE, RESEARCH AND TERTIARY EDUCATION
[2013] AATA 137
•14 March 2013
[2013] AATA 137
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4938
Re
THOMAS BERGHUIS
APPLICANT
And
SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, SCIENCE, RESEARCH AND TERTIARY EDUCATION
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 14 March 2013 Place Brisbane The Tribunal affirms the decision under review.
........................................................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Austudy – Activity test – Allowable time for completion of course – Progress rules – Time spent completing prior course at same level deducted – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 568, 569, 569A, 569H
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law s 3.3.4.80
Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
INTRODUCTION
In 2010, Thomas Berghuis commenced study at Griffith University for an engineering degree and received Austudy. On 13 August 2012, Centrelink made a decision to cancel Austudy payments on the ground that Mr Berghuis had exceeded the allowable study time for receiving Austudy. In my opinion the decision of Centrelink was correct. I give my reasons for coming to that conclusion.
BACKGROUND
Thomas Berghuis has a Bachelor of Information Technology degree from Southern Cross University. He did not receive any Austudy funding whilst he completed that degree.
In 2010 he commenced study at Griffith University for a Bachelor of Civil Engineering degree and initially received Austudy. On 13 August 2012, Centrelink made a decision to cancel Austudy payments from 23 July 2012 on the ground that Mr Berghuis had exceeded the allowable study time for receiving Austudy.[1]
[1] Exhibit A, T-document 31, p. 133.
CONSIDERATION
I have to decide whether Austudy can be paid to Mr Berghuis from 23 July 2012.
Section 568 of the Social Security Act 1991 (Cth) (“the Act”) provides that a person is qualified for an Austudy payment in respect of a period if, throughout the period:
(a) the person satisfies the activity test ...; and
(b) the person is of Austudy age …; and
(c) the person is an Australian resident.
There is no issue that Mr Berghuis satisfies the qualification requirements in subs 568(b) and (c) of the Act. What is in issue is whether Mr Berghuis satisfies the “activity test” under sub 568(a) of the Act.
The activity test is satisfied if a person is “undertaking qualifying study” for a period (s 569). Section 569A of the Act provides, relevantly, when a person is “undertaking qualifying study” for the purposes of the Part, the person must be enrolled in an approved course of study at an educational institution (subs 569A(a) and (b)) and the person is a full-time or concessional study-load student in respect of that course (sub 569A(c)). There is no issue that these requirements are met.
The allowable study time for a course undertaken by a full-time tertiary student is prescribed by s 569H of the Act. The Bachelor of Civil Engineering degree is a semester-based course. As the minimum amount of time needed to complete the course as a full-time student is more than one year and the course does not have a year-long subject, the allowable study time is provided for by sub 569H(3)(c) of the Act. This provision provides that a person can receive Austudy payment for the minimum amount of full-time study for the Bachelor of Civil Engineering course plus half an academic year. The minimum time for the completion of the course is four years. I accordingly find that the allowable study time for the course is four years plus half an academic year.
Mr Berghuis made a submission based upon the application of sub 569H(3)(i) of the Act. That subsection applies where a “student’s further progress in the course depends on passing a whole year’s work in the course”. In those circumstances the allowable study time is the minimum amount of time plus one year. However, there is no evidence before me that progress in a course depends upon passing a whole year’s work.
In order for a person to receive Austudy a person must also satisfy the progress rules (sub 569A(d)). I must therefore have regard to sub 569H(1) of the Act which, inter alia, provides that a person who is a full-time student in respect of a tertiary course satisfies the progress rules if “the time already spent by the student on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course”.
Subsection 569H(8) of the Act provides that there are five levels of courses: levels M, A, B, C and D. Level B courses includes a bachelor degree course (other than a postgraduate course), with or without honours (sub 569H(10)(a)). The Bachelor of Information Technology degree and the Bachelor of Civil Engineering degree are both Level B courses.
Mr Berghuis has already graduated with a Bachelor of Information Technology degree which took him three years to complete. Since Semester 2, 2010, he has been undertaking study for a Bachelor of Civil Engineering degree. As the allowable study time for his present course is four years plus half an academic year, whilst undertaking full-time study for that course he can receive Austudy for a period of one year plus half an academic year. After the expiration of that period he does not satisfy the progress rules as a consequence of the operation of sub 569H(1) of the Act which provides that the time spent on his present course or on one or more tertiary courses “at the same level” does not exceed the allowable study time for that course.
There are cases where previous study by an applicant can be disregarded under sub 569H(7) of the Act. However, I do not consider that he comes within the terms of that provision. The case of the applicant is that he should receive Austudy because he did not receive Austudy whilst undertaking study for a Bachelor of Information Technology degree. However, the only circumstance where there is an exemption where a person was not eligible to receive Austudy is where that eligibility is “because of the application of rules in respect of academic progress” (sub 569H(7)(j)). There is no evidence before me that would bring this exemption into operation.
I have considered the application of instruction 3.3.4.80 of the Guide to Social Security Law, which states:
Previous tertiary study undertaken at the SAME level is taken into account in measuring allowable time, unless an exemption applies.
Whilst this Tribunal is not bound to apply policy guidelines, the Tribunal will usually apply the guidelines unless there are cogent reasons why the policy should be departed from.[2] I cannot depart from the policy which reflects the terms of sub 569H(1) of the Act.
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
Mr Berghuis has pointed out that Griffith University offers a five-year degree combining engineering and information technology. His submission was based on the application of cl 2.5 of the Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998, which concerns the calculating of satisfactory progress time where there is an approved combined course. At the hearing I stated that it was inappropriate to apply this determination to Austudy as that Determination was formulated to apply to youth allowance. In any event I am required to apply the terms of sub 569H(1) of the Act.
DECISION
Mr Berghuis is not entitled to receive Austudy for his study for the Bachelor of Civil Engineering degree from 23 July 2012. I affirm the decision under review.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member ........................................................................
Associate
Dated 14 March 2013
Date of hearing 5 March 2013 Applicant In person Solicitors for the Respondent Ms Brooke Carruthers, DLA Piper
0
0
0