Willis and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 940
•21 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 940
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0021
GENERAL ADMINISTRATIVE DIVISION ) Re COOPER WILLIS Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member Bernard J McCabe Date21 October 2008
PlaceBrisbane (heard in Cairns)
Decision The Tribunal affirms the decision under review. ......................[Sgd]........................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – Cancellation of youth allowance – Activity test – Whether applicant undertaking full-time study in a course of education at an educational institution – Applicant studying overseas – Exception considered – Applicant’s studies did not form part of a course of education – Act contemplates periodic enrolment – Applicant did not enrol at an Australian educational institution whilst studying overseas – Decision affirmed
Social Security Act 1991 (Cth), ss 540, 541B(1), 1218
Student Assistance Act 1973 (Cth), s 3(1)
Secretary, Department of Families and Community Services v Brown [2006] FCA 532; (2006) FCR 296
REASONS FOR DECISION
21 October 2008 Senior Member Bernard J McCabe 1. This case deals with the entitlement of a student, Mr Cooper Willis, to continue receiving youth allowance while he attends a course at an overseas institution in circumstances where his own university:
·encouraged him to undertake the course of study at the overseas institution, albeit that there was no formal arrangement between the two institutions; and
·indicated in advance of his departure that the university was likely to accept a formal application for credit in respect of the studies undertaken overseas after the student returned.
2. The Secretary to the Department of Education, Employment and Workplace Relations, the respondent to this appeal, says the applicant in this case was not “undertaking full-time study” within the meaning of ss 540 and 541B of the Social Security Act 1991 (“the Act”) while he was overseas. He was therefore not qualified to receive youth allowance. The applicant disagrees.
The facts
3. Mr Willis is studying towards a Bachelor of Arts degree at the University of Queensland. He is undertaking a major in Chinese. He commenced his studies on 26 February 2006. He enrolled as a full-time student. He was eligible to receive youth allowance when he commenced his studies and continued to receive youth allowance payments while he studied at the University of Queensland.
4. Mr Willis is obviously a good student. He came to the attention of his teachers, including Dr Daphne Hsieh. Dr Hsieh was the “Coordinator of Overseas Study for Chinese Program” in the School of Languages and Comparative Cultural Studies. She gave evidence at the hearing. Dr Hsieh dealt with the applicant after he applied for a scholarship to study for a year at the Beijing International Studies University (“BISU”). The scholarship was offered by BISU. Dr Hsieh and her school agreed to administer the selection process on behalf of BISU. The agreement to do so was informal, in the sense that it was not conducted through central university offices pursuant to an official agreement between the institutions. Academic institutions work like that sometimes; individual academics and schools might cooperate with colleagues at other institutions without the benefit or burden of formal arrangements between the institutions.
5. Dr Hsieh said it was her understanding that the recipient of the scholarship who successfully completed studies at BISU would be given credit for those courses when he returned to the University of Queensland. She agreed it would still be necessary for the student to formally apply for credit upon his return, but she expected the application would be granted in the ordinary course. Once again, universities often work like that; Dr Hsieh was almost certainly well-placed to form a view about credit being granted because the university’s central authorities were likely to approach faculty members in the school for advice if there was any doubt about the applicant’s position.
6. Mr Willis was awarded the scholarship and prepared to go overseas. Before his departure, he spoke with Dr Hsieh about his entitlement to credit for his studies upon his return. Dr Hsieh wrote a letter at his request on 22 August 2007 addressed to Centrelink, found in Exhibit 1 at folio 86. The letter confirmed Mr Willis was enrolled as a student at the University of Queensland. It added that he had been awarded the scholarship to study at BISU and would attend that institution from 1 September 2007 until 15 July 2008. The letter concluded:
During that time he will study Chinese language in Beijing and on the successful completion of that study the University of Queensland will give him full credit towards his Chinese major in his Bachelor of Arts.
7. Centrelink decided to cancel the applicant’s youth allowance on 23 August 2007 because he was no longer qualified. Centrelink said the applicant was not “undertaking full-time study” within the meaning of the Social Security Act 1991 because BISU was not an educational institution mentioned in a determination made under the provisions of the Student Assistance Act 1973. It was unmoved by the letter from Dr Hsieh. It preferred to rely on a subsequent communication from the University of Queensland’s Student Centre that is reproduced in Exhibit 1 at folio 117. That communication is dated 13 November 2007. It confirms Mr Willis was “not currently enrolled in Semester 2, 2007.” It went on to say: “Mr Willis was last enrolled in Semester 1, 2007. The semester ended on 23 June, 2007.”
The legislation and its application
8. Section 1218 of the Act permits a person to continue receiving youth allowance payments while overseas in certain circumstances if the person is otherwise qualified to receive youth allowance. The qualifications are set out in s 540 of the Act. One of the qualifications is an ability to satisfy an “activity test”. Section 541 says a person satisfies the “activity test” if he or she is “undertaking full-time study”. That expression is defined in s 541B. Section 541B(1) says the person must be enrolled in an “educational institution”. That expression is defined in s 3(1) of the Student Assistance Act 1973. (Whereas the Act refers to an “educational institution”, the Student Assistance Act refers to an “education institution”. However, nothing turns on the distinction.) While it is clear the University of Queensland is an “educational institution” in the relevant sense, BISU is not. The issue under s 541B(1)(a)(i) is whether Mr Willis was still enrolled as a student at the University of Queensland while he was studying at BISU. If he was enrolled at the University of Queensland, he was qualified to receive youth allowance.
9. Information from the University of Queensland confirms the applicant was not formally enrolled in particular subjects at the university while he was studying at BISU. The applicant points out that the Social Security Appeals Tribunal (“the SSAT”) accepted the applicant had not withdrawn or suspended his enrolment in the degree program. The SSAT found he had merely not enrolled in particular subjects during the time he was overseas.
10. That approach is difficult to square with the language used by the university’s Student Centre in its facsimile reproduced in Exhibit 1 at folio 117, which confirms the applicant was “not … enrolled” in the second semester of 2007 while he was overseas. One must be careful of the language in communications of that kind, of course. Institutions do not necessarily use terms in a uniform way. To obtain a clear understanding of the usage of that term at the University of Queensland, one must have regard to the institution’s Enrolment and Academic Progression Rules: Exhibit 2 (“the rules”). The rules refer (at [1.1]) to “enrolment” in “programs” and “courses”. The dictionary in the rules refers to a “course” as being “a discrete portion of a program of study with a distinct name, code and unit value.” A “program” is defined as “the study set for a particular award at the university.” The word “enrolment” is defined to mean “enrolment in courses or programs approved by an authorised officer and after fees and charges have been paid.”
11. The definition of “enrolment” in the rules is interesting. It suggests that one is not enrolled in a course or a program unless one pays the requisite fees and charges. There is no evidence that Mr Willis paid fees and charges at the University of Queensland in respect of the time he was away in China. Perhaps that is what the university’s Student Centre meant when it said he was “not … enrolled” in that semester.
12. While words and phrases might be given a particular meaning at a particular institution by its own policies and rules, my task is ultimately to determine where the applicant stands having regard to the legislation. Was Mr Willis “undertaking full-time study” in the sense that he was enrolled in “a course of education at an educational institution” within the meaning of those expressions in the legislation?
13. The legislation appears to contemplate enrolling in a course of study on a periodic basis; s 541B(1)(a)(ii), for example, refers to re-enrolment as if to suggest one enrols on a semester-by-semester basis. That approach is consistent with the approach adopted by the University of Queensland’s rules. It suggests one is only enrolled in a degree program on a periodic basis. One does not simply enrol at the commencement of the course and remain enrolled until one completes the degree, withdraws from the course, or is excluded.
14. In written submissions, counsel for Mr Willis urged a different approach. The submissions pointed out s 541B(1)(a)(i) refers to a person being “enrolled in a course of education at an educational institution” rather than being “enrolled in subjects offered which form part of a course of education at an educational institution.” In making those submissions, counsel is using the expressions differently to the way they are used in the University of Queensland’s rules. The language used by counsel is reminiscent of the usage adopted by Bennett J in Secretary, Department of Family and Community Services v Brown [2006] FCA 532; (2006) 155 FCR 296. In that case, her Honour accepted (at [22]):
“the course” refers to the “course of education”, that is to the degree as a whole, not just to a subject.
15. In Brown, the applicant was enrolled in an Arts/Law program at Sydney University but took a deferment so that he could study at a university in Israel for a semester. There was no exchange agreement between the two institutions although (as in this case) it was anticipated Mr Brown would be given credit for his overseas study towards his course at Sydney University. Mr Brown relied on s 541B(1)(a)(ii), which provides that a person might take a break from a course provided they were enrolled in the past and intend re-enrolling on the next occasion on which enrolments are accepted.
16. Bennett J accepted that the “course” referred to in s 541B(1)(a)(ii) was the Arts/Law program, and the “education institution” referred to in s 541B(1) was Sydney University. The same approach applies in relation to s 541B(1)(a)(i): the “course” in question here is the Bachelor of Arts degree, and the “education institution” is the University of Queensland. Bennett J acknowledged (at [14], [28]) that the approach she adopted might lead to odd consequences, noting that a student might take an hiatus to go snow-boarding, for example, rather than undertake a worthy pursuit like studying at an overseas institution provided he or she intended to re-enrol at the next opportunity. But her Honour accepted that was the effect of the words in the statute and declined to adopt a more restrictive view that would strain the language of the provision.
17. The parties in this case have not relied on s 541B(1)(a)(ii). The respondent pointed out in its Statement of Facts and Contentions that Mr Brown’s case was different because his overseas study was completed within a single semester at the University of Sydney. In this case, Mr Willis’s study lasted for a year. He was not present at the University of Queensland for two whole semesters. The applicant did not suggest s 541B(1)(a)(ii) was applicable to the circumstances of this case, so I will not pursue that matter any further.
18. I think the effect of the legislation read in light of the decision in Brown is as follows. The legislation does contemplate a student enrolling and re-enrolling in a course of study (in this case a Bachelor of Arts program). The enrolment process occurred on a periodic basis. In the case of the University of Queensland and Sydney University, the period in question was a semester. Mr Brown succeeded under s 541B(1)(a)(ii) because he was enrolled at Sydney in the previous semester and planned to re-enrol the following semester. That is not the case here. Mr Willis did not enrol at the University of Queensland for two whole semesters while he studied overseas. His studies were not deferred, and he knew he would be away for an extended period. Mr Willis was not enrolled in the Bachelor of Arts course in the relevant sense because he had not periodically renewed his enrolment in the degree program (ie, the course) in each semester as required.
19. One cannot be said to remain enrolled in a course if one does not take steps to keep that enrolment current. The obvious way of doing that is by enrolling in subjects and paying any fees and charges that apply. The requirement that enrolment remain current might be satisfied in other ways. For example, a student studying at an overseas institution pursuant to a formal exchange agreement might be deemed to be enrolled at his or her home institution.
20. The applicant also argued that s 1218 of the Act protected the applicant. That provision says a student who is otherwise eligible to receive youth allowance payments is not disqualified just because he or she travels overseas “for the purpose of undertaking studies that form part of the course of education”. Regrettably, I do not think this provision is available because the applicant’s studies at BISU did not form part of the “course of education” offered by the University of Queensland – the “educational institution” in question. The situation would have been different if the program at BISU was formally recognised under an exchange agreement, or if the University of Queensland had committed itself to giving credit for the courses at BISU before the applicant left the country.
21. The applicant’s counsel argued the approach I have adopted does not accommodate the reality of modern tertiary education, where cross-institutional study is a feature of life. I acknowledge that “study abroad” programs are a common and welcome feature of university life these days. I do not agree that the approach to the law I have described threatens the viability of these programs. I understand from evidence provided at the hearing that a student who studies at an overseas institution pursuant to a formal university-to-university exchange agreement is taken to be still enrolled in the relevant courses at the University of Queensland. That makes sense, but the relationship with BISU was not such an arrangement. Notwithstanding the involvement of faculty members in the selection process for the scholarship, BISU was effectively unrelated to the University of Queensland. A student who attended BISU was not automatically entitled to credit in the way that a student at an “exchange institution” might be.
22. The problem in this case could have been avoided if the University of Queensland had concluded a formal arrangement with BISU that enabled Mr Willis to be considered as being enrolled at the University of Queensland, albeit that the courses were taught at BISU. Alternatively, the university might consider a practice of permitting (or encouraging, if it is already permitted) a student to seek pre-approval of subjects studied at an approved overseas institution in advance of his or her departure. One wonders why the university did not take these steps given the involvement of the faculty in selecting students for a program in which they had obvious confidence.
Conclusion
23. Mr Willis is in an unfortunate position. He acted in good faith and relied on advice he was given. He reasonably expected that he would remain qualified to receive youth allowance while he was overseas. I assume he planned and budgeted on that basis. I also have sympathy for Dr Hsieh, who was attempting to provide valuable opportunities to her students.
24. Given that:
·study abroad programs are becoming more common; and
·many of the students participating in those programs receive youth allowance;
it would be a good thing if the university administration provided clear advice on the enrolment process to staff and students considering overseas study. That is of little comfort to Mr Willis. In this case, the decision under review is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
Signed:...................................[Sgd]...........................................
Michael Buckingham, AssociateDates of Hearing 26 May 2008
25 July 2008
Date of Decision 21 October 2008
Counsel for the applicant Dr M A Jonsson
Solicitor for the applicant Cope Family Law
Advocate for the respondent Mr B Hamilton, Centrelink
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