Vos and Secretary, Department of Education (Social services second review)

Vos and Secretary, Department of Education (Social services second review) [2023] AATA 942 (26 April 2023)
Division:GENERAL DIVISION
File Number: 2022/5473
Re:Aidan Vos
APPLICANT

AndSecretary, Department of Education
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:26 April 2023
Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision of the Social Services and Child Support Division of the Tribunal dated 23 May 2022, and in substitution therefor, decides:
(a)The Applicant’s Youth Allowance is cancelled from 15 July 2019.
(b)The Respondent should have regard for these reasons.

.......................[sgd].................................................
Senior Member D. J. Morris
Catchwords
SOCIAL SECURITY – benefits, entitlements and pensions – financial assistance for full-time students – youth allowance – where applicant’s youth allowance cancelled – where First Review affirmed cancellation – where applicant was enrolled as a full-time student – where applicant changed his academic course – where applicant continued to study full-time – where legislation requires study to be in an approved course – where course applicant enrolled in was an approved course – where second course applicant enrolled in was also an approved course – where second course was contingent on the first course – whether two approved courses studied in parallel constitute an approved course – where legislation permits a student only to be enrolled in one course – where the one course can be a double degree course – where Tribunal finds applicant’s study of principal degree with other degree contingent on principal degree is not within strict terms of the legislation one course or a combined degree course – where respondent contends date of original cancellation wrong – where debt not raised – where applicant not eligible for Youth Allowance from a specified period but Tribunal considers imposition of debt in this particular case would be manifestly unjust – reviewable decision set aside and new decision substituted with direction
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33A, 37, 38AA
Student Assistance Act 1973 (Cth), s 5D
Student Assistance (Education Institutions and Courses) Determination 2019 (Cth), Sch 2
Social Security Act 1991 (Cth), ss 540, 541B, 541C
Social Security (Administration) Act 1999 (Cth), s 68, 94
Cases
Ferrier and Secretary, Department of Family and Community Services; Re: [2002] AATA 756
Shuttleworth and Secretary, Department of Education, Science and Training; Re: [2006] AATA 1045
Secondary Materials
Department of Social Services – Social Services Guide – Youth Allowance, 3.27.80
Dickens, Charles, Oliver Twist, or the Parish Boy’s Progress, by ‘Boz’;(1838) Richard Bentley; London
House of Representatives Hansard, 10 February 2016, p 1294
Social Services Legislation Amendment (Miscellaneous Measures) Bill 2015
REASONS FOR DECISION
Senior Member D. J. Morris
26 April 2023

When faced with cases in which the application of the law imposes an unjust result, eminent judges have often referred to the words of Charles Dickens in Oliver Twist that, “If the law supposes that..., the law is an ass.” Dickens’ character, the beadle Mr Bumble, was making a comic observation about the legal maxim at the time that a wife must follow the authority of her husband. The remark was of course originally literary hyperbole. However, as will become apparent in the following reasons, the Tribunal has encountered a case that fits this description here.
BACKGROUND
The Applicant, Mr Aidan Vos, was a student at the University of Tasmania (‘the University’). He had completed a Bachelor of Information and Communications Technology, and graduated into that degree in December 2018.
Mr Vos decided to continue his study. He was offered a place in the Bachelor of Arts degree programme at the University. On 28 December 2018 he lodged a claim for Youth Allowance with Services Australia (also called Centrelink), part of the Department of Social Services.
On 10 January 2019 Services Australia notified Mr Vos that his claim for Youth Allowance was granted, with an effective start date of 3 January 2019.
On 25 February 2019 Mr Vos commenced studying for a Bachelor of Psychological Science degree (code 53F) at the University. He was a full-time student. He formally withdrew from the Bachelor of Arts course on 13 March 2019. However, he did not tell Services Australia.
On 15 July 2019 Mr Vos started studying a Bachelor of Philosophy degree at the University. The Bachelor of Philosophy degree has the University code X3P. The University states in its 2020 handbook:
The Bachelor of Philosophy is a companion degree for high achieving students who are critical and creative thinkers…It’s a degree built of your choosing that you generally study in parallel with your principal degree.
(Emphasis added.)
When he was advised of the decision to grant him Youth Allowance on 10 January 2019, Mr Vos was given a notice under s 68(2) of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’) which relevantly stated:
Your Youth Allowance is based on you studying full time at the UNIVERSITY OF TASMANIA (UTAS), Tertiary Group B Course with the course ending on the 16 November 2021. If your study load changes or if you cease study you should let us know within 14 days.
Mr Vos was sent similar notices under s 68(2) of the Administration Act on 25 February 2019, 10 September 2019, 31 October 2019, and 22 November 2019.
On 23 November 2021, Services Australia wrote to Mr Vos and stated:
Your Youth Allowance has been cancelled from 13 November 2019 because you are not studying full-time or you have ceased studying.
As will become apparent, neither of these putative reasons was, in fact, factually correct in respect of Mr Vos. He had not ceased studying. In fact, he was studying at the University full-time, and continued to do so until the middle of 2022.
Mr Vos sought internal review by an Authorised Review Officer (‘ARO’), who is an officer of the Department not involved in the original cancellation decision. On 21 February 2022 the ARO affirmed the cancellation of Mr Vos’s Youth Allowance from 13 November 2019. The ARO relevantly wrote:
After carefully considering all relevant information, I have not changed the decision. This is because you are not considered to be studying as a full-time student in an approved course.
(Emphasis added.)
Note the subtle difference between the wording of the 23 November 2021 letter and the ARO’s letter, in regard to what was said to be the basis for the cancellation.
Dissatisfied with the ARO’s decision, Mr Vos sought review by the Social Services and Child Support Division of this Tribunal (‘First Review’). The First Review decided on 23 May 2022 to affirm the cancellation decision.
Still dissatisfied, Mr Vos sought a Second Review by the General Division of the Tribunal. That Second Review is the subject of this decision and reasons.
Although Youth Allowance is administered by Centrelink, the government agency responsible for it under the Administrative Arrangement Orders made by the Governor-General is the Department of Education, whose Secretary is the Respondent in this matter. The Respondent initially contended that the ARO’s decision (and therefore the First Review’s decision) should be affirmed and lodged written submissions to that effect. However, on 27 March 2023, the Secretary changed his position and lodged amended written submissions arguing that the reviewable decision should be set aside, and that Mr Vos should be found not to have been eligible for Youth Allowance from the earlier date of 15 July 2019 – being the date he enrolled in the Bachelor of Philosophy course.
HEARING
A hearing was held on 31 March 2023 by video, as is allowed under s 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). Mr Vos spoke for himself, and gave evidence. Ms Jacky Vetter, of HWL Ebsworth Lawyers, represented the Respondent. She cross-examined the Applicant and made submissions.
The Tribunal had regard for a Statement of Issues, Facts and Contentions submitted by the Applicant (‘ASFIC’), and an Amended Statement of Facts, Issues and Contentions submitted by the Respondent (‘RSFIC’) dated 27 March 2022.
The Tribunal also admitted into evidence the documents exhibited in the Annexure to these reasons.
At the conclusion of the hearing, the Tribunal reserved its decision and asked the Respondent to provide details of the notional payment of Youth Allowance to Mr Vos which could constitute a debt against the Applicant, should the reviewable decision be affirmed. The Respondent provided a response on 5 April 2023.
For the reasons that follow, the Tribunal sets aside the reviewable decision, but it also makes a direction that the Secretary of the Department of Education have regard for these reasons.
The Applicant’s submissions
Mr Vos noted that he completed his studies at the University in 2022, studying two degrees in parallel and that, because of this, Centrelink classified him as a part-time student for those years of study when he undertook both the Psychology and Philosophy courses.
Mr Vos noted that the Respondent does not consider his study of the Psychology and Philosophy courses as a legitimate combined degree, but instead considered the courses to be two separate degrees. He submitted that ‘Centrelink do not recognise my Bachelor of Philosophy (X3P) as a legitimate companion degree’. He noted that the University states that it considers his course of study as equivalent to studying the double degree philosophy course (code X3Y), instead of the Psychology (53F) and Philosophy (X3P) courses.
Mr Vos noted that, as a result of the decision not to classify him as a full-time student, his Youth Allowance payments were cancelled as of November 2021 and he was not paid for the remainder of the time he studied at the University, until he completed his studies midway through 2022. He noted that the Youth Allowance was also cancelled retroactively, dating back to November 2019.
Mr Vos contended that he did not aggregate two or more courses of education to satisfy the full-time study requirement to receive Youth Allowance, because ‘I was already (and continued to be) a full-time student.’
Mr Vos noted that the ARO found that ‘the Bachelor of Philosophy at the University of Tasmania is an approved course when studied at a full-time workload.’ The Tribunal notes that the ARO made an identically worded finding in relation to the Bachelor of Psychological Science degree. Mr Vos noted that the ARO went on to state, ‘These courses are not considered to be a combined approved course when studied simultaneously.’
Mr Vos noted that the ARO made no comment on the fact that the University has ‘verified that my Psychology (53F) and my Philosophy (X3P) courses are related, as evidenced by the acceptable double degree.’
Mr Vos noted that the Department of Social Services’ Social Security Guide, which is a policy manual used by Department officers and which is on the Department’s website, states at paragraph 3.27.80, under the sub-heading ‘Combined degrees’:
If a student is undertaking a course that is a double degree course or combined course, the study-load is measured against the normal full-time study-load for the course.
He contended that he was studying more than one course as part of a combined course, and his study-load was ‘clearly at least the normal full-time study-load for the course.’
Mr Vos wrote:
I did not aggregate my Philosophy and Psychology course to satisfy the full-time study requirement. Rather, I was already considered full-time prior to taking up my Philosophy studies mid-way through 2019. This means that rather than combining multiple degrees so as to ‘satisfy the full-time study requirement’, instead I increased my workload (not in amount, but in intensity), without any further cost to the government, or to the taxpayer, and I fulfilled all this within the exact same [sic] allotted study time. If I was made aware that this would be such an issue when I declared to Centrelink that I was undertaking this course back in 2019, then I would never have chosen to undertake this Philosophy course to start with.
Mr Vos noted that the Bachelor of Philosophy (X3P) course is an approved course which the University explicitly states is meant to be studied simultaneously with a principal degree. He noted that the University’s handbook states, in relation to the X3P course:
The difference with this degree is that half [the] requirement is met by the successful completion of your principal degree, with a GPA of 5.5 or higher.
Mr Vos contended that the Bachelor of Philosophy course could not be simultaneously approved as a full-time course and that it was also stipulated by the University as a course designed to be studied in parallel with a student’s principal degree. He submitted: ‘That doesn’t make sense. It’s either a full-time course or it’s not, but it cannot be both.’
Mr Vos quoted a letter dated 10 February 2022 from the College of Medicine and Health at the University which relevantly says of the Applicant:
This letter is to confirm that the above student is currently undertaking a full-time study load, as classified by the University of Tasmania.
Mr Vos is currently enrolled in the maximum possible study load under both the Bachelor of Psychological Science (53F) and the Bachelor of Philosophy (X3P), which are an approved double degree combination as outlined here [the last word of this sentence is hyper-linked to a general information sheet on combined degrees at the University].
The reason that Mr Vos is enrolled in two individual course codes, 53F and X3P, rather than the combined course code, X3Y, is due to administrative circumstances beyond his control.
(Underlining and emboldening in the original.)
Mr Vos submitted:
If [it] is the case that these circumstances were outside of my control, then it should not be the case that my Youth Allowance was cancelled due to the institution’s administration issues, whatever these are. Clearly the University deem my studies of the two courses as being related due to the fact that they consider me, in all but name, as having undertaken the X3Y double degree.
Mr Vos speculated that the reason behind his enrolment into two separate courses was because he commenced his Philosophy studies after having commenced his Psychology studies, or perhaps because the X3Y course is a four-year double degree, whereas he only required three and a half years to complete both, so the X3P degree provided more flexibility.
The Respondent’s submissions
The Respondent submitted that Mr Vos was not undertaking an approved combined course, that he was not undertaking full-time study, and that the decision to cancel Mr Vos’s Youth Allowance from 13 November 2019 was not correct. Ms Vetter submitted that by force of s 94(1) of the Administration Act, the Applicant’s Youth Allowance should be cancelled from 15 July 2019, being the date that Mr Vos started the Bachelor of Philosophy course and, in the Secretary’s submission, ceased then to be qualified for Youth Allowance.
The Respondent drew the Tribunal’s attention to s 540 of the Social Security Act 1991 (Cth) (‘the Act’) which requires, among other things, that a person in receipt of Youth Allowance satisfies the activity test. The activity test is outlined in s 541B of the Act and requires that the course in question be an approved course of education and study.
Section 541B of the Act states:
Undertaking full-time study
General
(1)For the purposes of this Act, a person is undertaking full-time study if:
(a)The person
(i)          is enrolled in a course of education at an educational institution; or
(ii)          was enrolled in the course and satisfies the Secretary that he or she            intends and has (since no longer being enrolled) always intended to   re-enrol in the course when re-enrolments in the course are next   accepted; or
(iii)         was enrolled in the course and satisfies the Secretary that he or she            intends, and has (since no longer being enrolled) always intended, to                    enrol in another course of education (at the same or a different   educational institution) when enrolments in the other course are next                  accepted; and
(b)The person:
(i)Is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or
(ii)Intends to undertake in the next study period for which he or she intends to enrol for the course; either:
(iii)In a case to which subsection (1A) does not apply – at least three-quarters of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); or
(iv)In a case to which subsection (1A) applies – at least two-thirds of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4); and
(c)The course in question is an approved course of education or study (see subsection (5)); and
(d)In the Secretary’s opinion, the person is making satisfactory progress towards completing the course.
Note: Only one course of education can be considered in deciding if a person satisfies the undertaking full-time study requirement: see section 541C.
…
The Respondent noted that s 541B of the Act relevantly provides that for the purposes of s 541B(1)(c), the course is an approved course of education or study if it is a course determined, under s 5D of the Student Assistance Act 1973 (Cth), to be a secondary course or a tertiary course for the purposes of that Act.
The Respondent noted that s 541C of the Act provides:
One course of education
(1)Whether subparagraph 54B(1)(a)(i) or (ii) and paragraphs 541B(1)(b), (c) and (d) are satisfied in relation to a person is to be determined in relation to only one course of education.
(2)Whether the person satisfies the Secretary of the person’s intention mentioned in subparagraph 541B(1)(a)(iii) and whether paragraphs 541B(1)(b), (c) and (d) are satisfied in relation to the person is to be determined in relation to only one course of education.
Note 1: The effect of this section is that 2 or more courses of education for a person cannot be aggregated to study the undertaking full-time study requirement;
Note 2: The one course of education may be a combined course; see the legislative instrument made under section 5D of the Student Assistance Act 1973.
The Respondent submitted that what constitutes an approved course of education or study is prescribed by the Student Assistance (Education Institutions and Courses) Determination 2019 (‘the Determination’) made by the Minister. According to schedule 2 of the Determination a tertiary course includes undergraduate or post graduate accredited higher education course at the level of, relevantly in Mr Vos’s case, a bachelor’s degree. A tertiary course also includes a course that leads to two or more (in this case) bachelor’s degrees and is identified as a combined course in the institution’s handbooks.
The Respondent conceded that it is not in dispute that Mr Vos’s Bachelor of Psychological Science (53F) course and Bachelor of Philosophy (X3P) course are approved courses under the Minister’s Determination as individual courses. However, the Secretary submits the degrees cannot be considered an approved combined course under the Determination.
The Respondent noted that the transcript provided by the University shows that, from the second Semester in 2019, Mr Vos was enrolled in two separate course codes. Noting that Mr Vos contended that he was meant to be enrolled under the double degree code X3Y, and provided a letter dated 11 November 2022 from the University in support of this contention, the Secretary submitted that the earlier correspondence from the University does not state that Mr Vos was enrolled in a course that was identified as a ‘combined course in the institution’s handbook’ as required under the Determination.

In support of the Secretary’s position, Ms Vetter noted an email dated 8 February 2021 from a course information officer at the University which stated to Mr Vos that he was:
currently enrolled in two separate degrees: 54F BPsychSci and X3P BPhil. You are not currently enrolled in one of the new double degrees.
In another email from the University to Mr Vos, dated 23 November 2021, the writer noted that the Applicant was undertaking two separate degrees.
In an email dated 1 November 2022 a student adviser at the University stated to Mr Vos:
I’m unable to state that your enrolment was an error or a mistake. This is because, from a UTAS perspective, there has been no error. This is how our high achievers program is structured and all students in the program are enrolled in two separate course courses.
The Respondent also cited a decision by Senior Member Bullock in Ferrier and Secretary, Department of Family and Community Services [2002] AATA 756 (‘Ferrier’), where the learned Senior Member found that an Applicant who tried to combined studies across multiple and separate courses did not meet the criteria of full-time study.
The Respondent then cited a decision by Senior Member Ettinger where, in Shuttleworth and Secretary, Department of Education, Science and Training [2006] AATA 1045 (‘Shuttleworth’) at [18], in which the learned Senior Member noted Senior Member Bullock’s findings in Ferrier and said:
I am satisfied that aggregation of courses can only take place where formal recognition is made by the educational institutions involved, and that this was not the case in Ms Shuttleworth’s situation.
The Respondent contended that Mr Vos’s circumstances are similar to the applicants in Ferrier and Shuttleworth, in that he was not studying an approved combined degree, rather he was studying ‘equivalent to an approved combined degree’ and that the Secretary therefore contends he should not be considered to be undertaking full-time studies 13 November 2019’ [sic].
The Respondent noted that Mr Vos submits that the Bachelor of Philosophy (X3P) course is a companion degree that is ‘meant to be studied simultaneously with a principal degree’ and acknowledged that the course information for the X3P course in the University’s 2020 handbook referred to the fact that half of the required credit points is met by the successful completion of the student’s ‘principal degree’ with a grade point average (‘GPA’) of 5.5 or higher (TD, p 51).
In terms of full-time study, the Respondent submitted that ‘the Applicant’s Bachelor of Psychological Science and Bachelor of Philosophy do not meet the definition of an approved course of education or study for the purposes of the Act’ and that only one course of study can be considered when determining whether Mr Vos was undertaking full-time study.
The Respondent referred to Mr Vos’s Faculty Record at the University which stated that he studied four subjects in the Bachelor of Psychological Science degree in Semester 1 of 2019. From Semester 2 in 2019 until the end of 2021 he undertook two subjects for the BPsychSci course and two subjects of the BPhil course, each semester (TD, pp 114-115).
Therefore, the Respondent submitted that Mr Vos was ‘only undertaking an equivalent full-time study load of 0.25 [sic] which was below 75% of a full-time study load required for Youth Allowance’. The Secretary submits, therefore, that Mr Vos did not satisfy the activity test for Youth Allowance.
In terms of allowable exemptions from the activity test, Mr Vos emphasised in his oral submissions that he was not claiming that any are relevant in his case, and he confirmed in response to questions put to him by Ms Vetter that this was the case. The Secretary’s formal submission concurred that allowable exemptions were not relevant. In this case, in the absence of any evidence before it to the contrary, it is not necessary for the Tribunal to consider whether any of the activity test exemptions are applicable.
APPLICANT’S ORAL EVIDENCE
Mr Vos noted that a lawyer for the Respondent sent him an email dated 6 October 2022 which relevantly stated:
It is open to you to obtain better evidence and particulars from the university to explain any error regarding your enrolment (i.e. that you were enrolled in an approved combined degree, or that your studies were equivalent to an approved combined degree but due to an administrative error you were not enrolled in the same).
He said that the two courses had a common course coordinator and contended that the BPsychSci and BPhil degrees do meet the definition of a combined course. He suggested that, had he been studying, for example, a Bachelor of Business, that would not be considered a combined degree.
Mr Vos stressed he was not seeking to make a case for special circumstances. He said that he visited the Centrelink office in Barrack Street, Hobart, and told an officer that he was now undertaking a double degree, and the officer advised that this change would not affect his benefit, provided he was still studying full-time. He accepted that it was erroneous when he the officer that he was studying a ‘double degree’ but that his description was borne out of ignorance, not an attempt to mislead Centrelink, because he was studying two linked degrees full-time.
Mr Vos said his recollection is that his visit to the Centrelink office was around the time he had a text message exchange with his father (Exhibit A7) on 7 November 2019 in which he sent the message “how would this BPhil thing go down with Centrelink?” Mr Vos said when he left the Centrelink office, he felt good because he thought he had clarified the situation.
In response to questions put by Ms Vetter, Mr Vos accepted that, after he was granted Youth Allowance, he received periodic letters from Services Australia and that contained in these letters was a general reminder to advise Centrelink if he applied for a change in his enrolment. He accepted that he initially enrolled in a Bachelor of Arts course and then was offered a place in the Bachelor of Psychological Science course. He accepted that he had an obligation to inform Centrelink if he ceased study or changed his enrolment.
Mr Vos accepted that his text message to his father of 7 November 2019 meant that, by that time, he realized his change of enrolment might affect his benefit. When asked whether he did not tell Centrelink about changing from the BA to the BPsychSci course, Mr Vos said “I believe that I did. My understanding is that Centrelink did know, but did not know about the BPhil.”
Mr Vos was asked if he knew from the University officer’s email of 8 February 2021 that he was studying two separate degrees, not one of the ‘new combined degrees’. He responded that he accepted he was told that, but did not know the difference at that time.
The Tribunal questioned Mr Vos about why he did not inform Centrelink of his change of study. He responded, “I contend that I did. I remember walking in and telling the assistant that I was studying a double degree. Erroneously.”
The Tribunal asked Mr Vos when he says he had this discussion with Centrelink, whether it was around the time of his text exchange with his father on 7 November 2019. He said, “around that time.”
The Tribunal asked Mr Vos when he said to the Centrelink officer that he was studying a double degree, did he really think that he was, or was he saying it ‘loosely’. Mr Vos responded: “Yes, I said it loosely.”
Mr Vos said he submits the X3P Bachelor of Philosophy course is a combined degree, and that it is strange that the Respondent would undermine that, given it is designed to be studied in parallel with a primary course of study. He noted that the X3P course is an approved course under the Determination. He said that he recognises the failures on his part in regard to the activities test, but he did not realize the intricacies of the legislation. He said: “What I was studying was equivalent to a combined degree. My goal is not to undermine the system to circumvent the law. I acted in good faith. I wouldn’t have done it. I am well over it; it’s been going on for some years.”
Ms Vetter said that the Tribunal must apply the legislation as it is. She said the course Mr Vos was undertaking was not a combined degree recognised in the University handbook and that Mr Vos has received valid notices under s 68(2) of the Administration Act and, by force of s 94(1) of the Administration Act, which is a self-executing provision, his Youth Allowance cancelled because Mr Vos did not inform Centrelink of changes in his circumstances.
The Tribunal noted that there was a reference in the papers to Mr Vos visiting the Centrelink office in Barrack Street, Hobart, in Annexure B of the RSFIC. The contact note recorded:
Customer contacted Hobart on 22 Nov 2019 regarding General Inquiry for Youth Allowance. Information was obtained via Personal in office.
The contact note goes on to record discussions Mr Vos had with an officer about Rent Allowance where he was entitled to a back-payment. Mr Vos told the Tribunal he could not in good faith say that this visit was definitely the occasion when he had a conversation with the Centrelink officer about studying a ‘double degree’, but that it may have been.
CONSIDERATION
Relevant chronology
It is necessary to set out a chronology of Mr Vos’s interactions with the University to get a full understanding of how this matter unfolded.
Mr Vos first undertook a Bachelor of Communications and Technology degree at the University, with the degree conferred on 19 December 2018 (ST p 4).
On 19 October 2018 the University wrote to Mr Vos and offered him a place in the Bachelor of Arts degree programme for the forthcoming academic year (ST p 8).
He applied for and was granted Youth Allowance on the basis that in the next academic year he was to be a full-time student studying a Bachelor of Arts degree, an approved course under the Determination.
Wanting to major in psychology, Mr Vos emailed the admissions officers of the University and noted that the Bachelor of Psychology degree offered by the University was ceasing, and a new degree of Bachelor of Psychological Science (53F) was being inaugurated. He inquired about enrolling in the new BPsychSci degree (ST p 12).
Mr Vos asked whether he should withdraw from the BA course if he enrolled in the new BPsychSci course. He was advised not to by the University officer (ST p 13).
The University then formally offered Mr Vos a place in the new Bachelor of Psychological Science (53F) degree on 14 January 2019 (ST p 16). This degree was also an approved course under the Determination.
Mr Vos’s withdrawal from the BA course was formalised on 13 March 2019 (ST p 33).
Because he was a graduate, Mr Vos had received advanced standing for the BPsychSci degree which affected the study plan the University permitted. Mr Vos inquired about changing his subject mix and contemplated ‘degrading’ his degree so that he could study a particular unit that he was prevented from studying because he was a postgraduate.
In response to that, on 10 July 2019, the University emailed Mr Vos recommending that he also enrol in the Bachelor of Philosophy degree (X3P). The officer relevantly wrote (ST, pp 43-4):
You have achieved grades that I believe would support an application and it is certainly a very worthwhile course. Please make sure that you look at the individual streams. I believe this is able to be studied alongside your Psych Degree and may help you with maintaining a minimum three unit study load that you are seeking to do. Please let me know if this suggestion is a worthwhile one for you and I will hold off any changes to your 53F admission until I hear from you.
On 11 July 2019, Mr Vos responded to the University’s suggestion and wrote in his email, ‘I would like to go ahead with your suggestion and enrol in XSP’ (i.e., the Bachelor of Philosophy (X3P) degree) (ST, p. 43).
There is an undated letter from the University to the Applicant confirming that he was enrolled in two named units in the BPsychSci degree and two named units in the BPhil degree, for the second Semester of 2019 (ST, p 18). Relevantly, the University reminded Mr Vos that he must achieve a graduate GPA of 5.5 or higher in both to graduate BPhil.
The University advised the Applicant in an email that all BPhil students are ‘studying the course alongside another’ (ST p 88).
Applicant’s academic progress
Before the Tribunal is the academic record of the Applicant in relation to his studies from 2019 to 2022 (ST, pp 5-7). In the first Semester of 2019 he studied four units in the BPsychSci degree course. He achieved a High Distinction (HD), Distinction (DN), Distinction (DN) and Credit (CR).
In the second Semester of 2019 he studied two Psychology units (HD, DN) and two Philosophy units (DN, CR).
In the first Semester of 2020 his results in two Psychology units were DN and CR. In the two Philosophy units they were DN, DN. In the second Semester of 2020 his results in two Psychology units were CR and CR. In the two Philosophy units they were DN, DN.
In the first Semester of 2021 his results in two Psychology units were HD, DN. In the two Philosophy units they were HD, DN. In the second Semester of 2021 his results in two Psychology units were DN, DN. In the two Philosophy units they were HD, DN.
In the first Semester of 2022 his result in one Psychology unit was a DN and he received an exemption because of prior academic standing from another unit. His results in the two Philosophy units were CR, CR. He was then advised by the University that he had fulfilled the requirements for admission to the 53F and X3P degrees.
On 22 August 2022 Mr Vos was admitted to the degree of Bachelor of Psychological Science by the University. The following day, 23 August 2022, he was admitted to the degree of Bachelor of Philosophy (ST p 4).
Applicant’s conduct
There are certain things that are clear to the Tribunal. The first of these is that there has been some dilatoriness by the Applicant in advising Centrelink of all of the changes in his circumstances. There is evidence before me that he was compliant with his responsibilities in the period in question in some respects, including emailing the University seeking another copy of a document that he had mislaid in order that he could provide it to Centrelink (ST, p 29), and attending the Centrelink office on other occasions, or contacting them electronically.
However, there is no evidence that he actually advised Centrelink of his change in enrolment from the BA course to the BPsychSci course. There is also no evidence that he advised the Department that he was also, from the second Semester of 2019, enrolling in the BPhil course.
Was the Applicant a ‘full-time student’?
Ms Vetter said that the Secretary concedes the point in relation to the failure of Mr Vos to notify of the change from the Bachelor of Arts course to the Bachelor of Psychological Science course in the early months of 2019. It would appear this concession is because Mr Vos maintained a full-study load within the strict terms of the Act.
However, the Respondent submits that, because the Applicant changed to study two units in his Psychology course and two in his Philosophy course from the second semester of 2019, he ‘could not be regarded as a full-time student’. This is somewhat of a legal fiction because Mr Vos was, as the University makes clear in its correspondence on more than one occasion, a full-time student from their perspective and, in fact, the University makes the point that he could not be doing a greater study load because he was already studying the maximum number of units that it permits.
But the way in which s 541B of the Act is couched is restrictive. It deems that a person is not a ‘full-time student’ unless he or she is undertaking a full-time load (or at least a 75% load) in one course or one double degree course. Mr Vos, from the second semester of 2019, was undertaking a 50% load in the 53F degree course and a 50% load in the contingent X3P course.
Was the Applicant studying a combined degree?
It is clear to the Tribunal that Mr Vos was not studying a combined degree. The nomenclature of ‘combined degree’ and ‘double degree’ is used variously in communications from the University and there is a misleading hyperlink in one letter from the University to Mr Vos which the Tribunal heard linked (at the time the letter was sent) to a general information page on double degrees offered by the University.
I find that from the second Semester in 2019 Mr Vos was studying two degrees in parallel.
However, importantly, it is equally clear that the Bachelor of Philosophy (X3P) degree was, to use the language of the X3P course itself, a ‘companion degree’, one that was contingent on the ‘principal degree’, the Bachelor of Psychological Science degree.
The University makes clear from the outset that Mr Vos was invited to enrol in the BPhil as part of their assessment that he was a ‘high achiever’, and that fact may be attested by the results he subsequently achieved. But, more importantly, it was made clear to Mr Vos that he would not receive the BPhil degree unless he maintained a graduate GPA of 5.5 or higher in both degrees.
As mentioned above, in support of his position, the Respondent cited two previous Tribunal decisions in support of its position: Ferrier and Shuttleworth. I consider they are distinguishable on the facts.
In Ferrier, the Applicant was simultaneously studying a TAFE Certificate II in Horticulture and a TAFE Certificate IV in Craft and Visual Art Practice Skills. Both were part-time courses. They were offered by the same institution, Bega TAFE, but Ms Ferrier studied them at different campuses. In Shuttleworth, the Applicant was studying a Bachelor of Arts degree course at Curtin Institute of Technology and, separately, a jewellery and watercolour course through TAFE-WA. Ms Shuttleworth was off campus in a town outside Perth, WA, and the learned Senior Member noted that the tuition for the two unrelated courses actually occurred at the same location and in the same room. Ms Shuttleworth had not mentioned the jewellery course to Centrelink.
In both cases the Tribunal found that the courses could not be aggregated to mean the Applicant was studying full-time. They were unrelated courses.
The facts in Mr Vos’s case are significantly different. He was studying a degree course at the same institution, and it was then suggested – by the University – that he also study another degree course at the same institution. I agree with Ms Vetter’s submissions that they were separate courses, though I would qualify that agreement by adding that the courses are inextricably linked because of the rules of the X3P degree. I also agree with the Respondent that some of the correspondence from the University on that score was misleading, including a suggestion that there was some administrative error in the enrolment. There is no evidence of that.
Applicant was studying principal degree and companion degree
But what is factual is that the BPhil course studied by the Applicant was not a stand-alone degree. Mr Vos was alerted to the fact that he had to maintain a graduate GPA of 5.5 for the duration of both courses if he wanted to graduate in the BPhil degree. The evidence of the University in the papers is that there ‘are no students’ studying the BPhil degree who are not undertaking a principal degree. That is logical given that admission to the X3P degree is contingent on the student’s principal degree.
The prescriptive legislative provisions
I am compelled because of the provisions in s 541C of the Act to find that Mr Vos’s enrolment from the time he commenced the Bachelor of Philosophy in parallel with the Bachelor of Psychological Science in July 2019 does not meet the strict requirements of s 541B of the Act. That is because, although it is unarguable that Mr Vos was a full-time student in the ordinary understanding of that term, and in the University’s classification of him, he is not considered to be a ‘full-time student’ in the special terms of this part of the Act.

Mr Vos satisfied s 541B(1)(a)(i) of the Act in that he was enrolled in a course in the relevant period. He also satisfied s 541B(1)(c) in that he was undertaking an approved course of study – both the BPsychSci and BPhil degree courses are approved courses of study.
As is evidenced from the summary of his academic results set out earlier, I am satisfied, standing in the Secretary’s shoes, that Mr Vos made satisfactory progress at all times during the relevant period (thereby satisfying s 541B(1)(d)).
However, the Applicant did not satisfy s 541B(1)(b)(iii) in maintaining at least three quarters (75 per cent) of the normal amount of full-time study in one course.
Because of when he changed his study load on commencing the X3P degree, I agree with the Respondent’s amended submissions that the date of effect should be 15 July 2019, being the day Mr Vos commenced his BPhil studies in parallel. Therefore, I will set aside the First Review decision which affirmed the ARO’s decision of an ineligibility date of 13 November 2019.
DISPOSITION
A potentially unjust outcome
In the area of pensions, benefits and entitlements, the Tribunal sometimes encounters a case where the application of the law will lead to an unjust outcome. It is not common, but it does happen. I am satisfied that this is such a case.
The mischief that the 2016 amendments to the Act in relation to Youth Allowance for full-time students was designed to prevent was that of a person bolting together unrelated courses to present that he or she is studying at least a 75% study load, and thereby obtain the benefit. Mr Vos did not do that. He was studying a 100% study load at the University in two linked degrees for the whole period of time that he received Youth Allowance, except for the first Semester in 2019. In that first Semester in 2019, as set out above, he was also studying a 100% study load, but in one degree.
The problem that arose here boils down to the way the University coded the BPhil degree. Given that it is designed to be studied as a ‘companion’ degree, and it cannot be conferred without the student achieving a certain minimum level in both a principal degree and the Bachelor of Philosophy, the X3P degree should properly be coded as part of a combined degree for all students undertaking it. Perhaps the reason that it was not is because it is a relatively new degree centred around a selective admission for high achieving students – it is not available to anyone. But the rules of the degree as set out in the papers before me make clear it is a degree linked directly to – and contingent upon – a principal degree being contemporaneously studied by a student.
Mr Vos struck the Tribunal as a frank and honest witness. When the Tribunal suggested to him that a record of him visiting the Barrack Street, Hobart Centrelink office to make a ‘general inquiry’ about Youth Allowance might support his contention that he went to that office and had a discussion with an officer about the fact he was doing a ‘combined degree’, he said he could not in good faith say he did discuss it on that day.
However, taking into account that he was neglectful in not advising Centrelink of his change of enrolment and this, by itself, is sufficient to constitute a breach of his obligations under the Administration Act as a person in receipt of Youth Allowance, his other conduct in the relevant period was all consistent with a student studying full-time, making good academic progress, and graduating. It is also evident from the material lodged by the Respondent that Mr Vos was compliant in reporting other things to Centrelink that he needed to, such as his accommodation arrangements and rent details.
Taking into account that he should have been more assiduous in reporting his change of enrolment to Centrelink (which the Applicant acknowledged at the hearing), there is no evidence before me that Mr Vos formed a positive intention to claim Youth Allowance when he was not eligible. It is clear that when he also enrolled in the X3P course in the middle of 2019, from his perspective, he was simply continuing to study four units a semester, i.e., what the University advise is a full-time student study load. The problem is that from the second Semester of 2019 it was two units in the principal degree course and two in the companion degree course.
At the conclusion of the hearing, the Tribunal asked Ms Vetter what the amount of debt that would be raised against Mr Vos would be, should the Tribunal accept the Secretary’s submissions that the decision be set aside, and a new decision made in the terms above. Ms Vetter stressed that no decision had been made to raise a debt. The Tribunal nonetheless asked if details of the payment to Mr Vos over the period could be provided, but did not make a formal direction.
On 5 April 2023 the Respondent emailed the Tribunal and stated:
We confirm that no debts (apart from debts raised in relation to student start-up loans) have been raised against Mr Vos as a result of the cancellation decision, which is the subject of the Tribunal's review. Therefore, we are unable to provide the Tribunal with any debt amount that might be attached to the period from 15 July 2019 to the date of cancellation.
The Respondent also produced a voluminous copy of Department of Social Services records of various interactions with, and payments to, Mr Vos in the relevant period. It is not the job of the Tribunal to do the sums for the Respondent, but the Tribunal accepts there would be a contingent liability of several thousand dollars.
In this particular case, I consider that, while the cancellation decision will be affirmed, the Secretary should not initiate action to recover the debts. I would go further and say it would be unjust in this specific case so to do.
This is not a case like Ferrier and Shuttleworth, which the Respondent put forward as precedential. In those cases, the students were each studying unrelated courses, in one case in different subject matters at different academic levels and in the other at completely different levels, subject matters and institutions. This is a case where the courses were not unrelated: Dr Christine Padgett, who was the course coordinator for the Bachelor of Psychological Science degree, wrote an email to the Applicant on 10 February 2022 wherein she relevantly said (ST, p 158):
There are elements of philosophy content which compliment [sic: complement] psychology (eg ethics, the merit of the scientific paradigm, dualism, etc). So if that is helpful, please feel free to use this email as evidence of that.
Importantly in the Tribunal’s view, the evidence shows that it was actually a suggestion from the University that Mr Vos enrol in the BPhil course – i.e., initiated by the institution, not by the Applicant. I am certain that when the suggestion was made, the University officer was unaware of the serious consequences to the Applicant’s eligibility for Youth Allowance. This encouragement by the University to Mr Vos has had a direct unforeseen consequence.
When what became s 541C of the Act was proposed to the Parliament through the Social Services Legislation Amendment (Miscellaneous Measures) Bill 2015, the then Minister for Social Services told the House:
This bill will also make several amendments to the administration of certain student payments. One of these amendments is to clarify that only one course of education is taken into account in assessing the definition of 'undertaking full-time study' or the definition of 'undertaking qualifying study' for student payments at the same institution or across multiple institutions. This amendment aims to prevent students from being supported financially to undertake multiple unrelated courses of education that do not contribute to their employment or career prospects. It is estimated that this will affect only a small number of individuals.
(Emphasis added.)
This was the expressed intention, and understanding, of the Minister who introduced the Bill in inserting the ‘one course’ clause into this part of the Act. It can also be taken, because of its passage unamended, as also the express intention of the Parliament. Mr Vos was plainly not undertaking, to borrow the Minister’s phrase, ‘multiple unrelated courses of education that do not contribute to [his] employment or career prospects’.
Given that the rules of the Bachelor of Philosophy are very clear that it is a degree contingent on a principal degree, it is the Tribunal’s view that it would be unfair for Mr Vos to face detriment in this case where he has not acted in any conscious way to obtain a benefit to which, because of the strict wording of s 541B, it turns out he was not entitled.
If the purpose of the benefit is to support a student who is a legitimate full-time student undertaking an approved course, that is precisely what the Applicant was in the relevant period. He did not ‘aggregate’ the courses in order to make up a full-time study load; he was already studying a full-time study load in the first Semester of 2019 and continued to do so.
In the Tribunal’s view, the raising of a debt would be counter to the parliamentary intention of ss 541B and 541C of the Act, when account is taken of these particular circumstances. The legislative intention was clearly, as I have discussed, and as the Minister of the day articulated, to prevent a part-time student stitching together a putative study load in disparate courses, to make up at least a load of 75%.
Reasons to be sent to the University of Tasmania
The Tribunal will cause a copy of these reasons to be sent to the Vice-Chancellor of the University of Tasmania, Professor Rufus Black, with a respectful suggestion that he arrange for the course code for the Bachelor of Philosophy (X3P) degree to be corrected to make it clear for any current or future enrolees that it is part of a combined degree, given that the rules of that degree course already make plain that the X3P course is subordinate (and reliant upon) the principal degree a student is studying. This may avoid future unintended consequences for students on Youth Allowance, such as those visited upon Mr Vos.
DECISION
Pursuant to s 43(1)(c) of the AAT Act, the Tribunal sets aside the decision of the Social Services and Child Support Division dated 23 May 2022 and, in substitution therefor, decides:
(a)The Applicant’s Youth Allowance is cancelled from 15 July 2019.
(b)The Respondent should have regard for these reasons.
ANNEXURE – Schedule of Exhibits
Documents lodged (s 37 of the AAT Act) (TD) Exhibit R1
Supplementary documents (s 196 of the Administration Act) (ST) Exhibit R2
Applicant’s email dated 6 March 2023  Exhibit A1
Email of Dr Christine Padgett dated 10 February 2022  Exhibit A2
Correspondence with University dated 4 November 2022      Exhibit A3
Correspondence with University dated 10 February 2023       Exhibit A4
Correspondence with University dated 24 February 2023       Exhibit A5
Correspondence with University October 2022 to February 2023                Exhibit A6
Text message of Applicant dated 7 November 2019  Exhibit A7
Letter from University dated 3 March 2023  Exhibit A8
Letter from University dated 10 February 2022  Exhibit A9
Letter from University dated 11 November 2022  Exhibit A10
Applicant’s email to his father dated 11 July 2019  Exhibit A11
Applicant’s ‘degrees current (unaltered) plan’  Exhibit A12
Applicant’s ‘degrees revised plan’  Exhibit A13
University Bachelor of Philosophy (X3P) Overview 2020  Exhibit A14
University Double Degree (3XY) Overview 2022  Exhibit A15

I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...........[sgd]............................
Associate
Dated: 26 April 2023

Date of hearing:
31 March 2023

Applicant:

Self-Represented

Respondent representative:

Ms Jacky Vetter

Respondent solicitors:

HWL Ebsworth Lawyers

[2023] AATA 942

26 April 2023

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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Appeal

Date of hearing:	31 March 2023
Applicant:	Self-Represented
Respondent representative:	Ms Jacky Vetter
Respondent solicitors:	HWL Ebsworth Lawyers