Yao and Secretary, Department of Employment and Workplace Relations

[2006] AATA 607

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 607

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2006/222

GENERAL ADMINISTRATIVE DIVISION		)
Re		QING QUAN YAO

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal   Professor Ivan Shearer, Senior Member

Date  7 July 2006

Place  Sydney

Decision   The Tribunal affirms the decisions under review.

[Sgd]  Professor Ivan Shearer, Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – decisions under review concerning breach of activity test for Newstart allowance and decision to not approve Applicant’s undertaking of full time courses as satisfying activity test – consideration and assessment of evidence – application of legislation - the Tribunal affirms the decisions under review.

Social Security Act 1991

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

REASONS FOR DECISION

7 July 2006               Professor Ivan Shearer, Senior Member

1.        The two decisions under review are:

(a)      The decision of the Authorised Review Officer (“ARO”) of  Centrelink,                   dated 21 September 2005,  to affirm the decision of Centrelink dated 2                  August 2005 that the Applicant had breached the activity test for a   Newstart allowance, and that his Newstart allowance be subjected to a               reduction of 18% for a period of 26 weeks from 26 August 2005;

(b)      The decision of the ARO, dated 23 November 2005, affirming earlier   decisions of Centrelink, not to approve the Applicant’s undertaking full-                 time courses in accounting beyond December 2004 as satisfying the                  activity test for Newstart allowance.

2.        The Applicant applied to the Social Security Appeals Tribunal (“SSAT”) for a review of both decisions above. The SSAT upheld those decisions on 6 February 2006.

3. The applicant applied on 22 February 2006 to this Tribunal for a review of the decision of the SSAT pursuant to section 1283 of the Social Security Act 1991 (“the Act”).

PROCEEDINGS BEFORE THE TRIBUNAL

4.        The applicant appeared in person and gave evidence. The Respondent was represented by Mr. K. Bullock. The Tribunal was assisted by an interpreter qualified in the Chinese (Mandarin) and English languages.

FACTS

5.        The facts were essentially not in dispute between the parties, although their interpretation was on several points in contention, as will be noted below.

6.         Mr Yao arrived in Australia from China in July 2000. He has permanent residence status. He is presently 35 years of age. He enrolled at the University of New South Wales in the course for the degree of Master of Engineering Science, which he successfully completed in July 2002. Mr Yao then applied to Centrelink for a Newstart allowance, which was granted with effect from 12 August 2002. He has been in continuous receipt of this allowance (subject to the reduction later to be mentioned) since that time.

7.        On 14 August 2002 the applicant entered into a Preparing for Work Agreement. He entered into a further Preparing for Work Agreement on 20 December 2002. These agreements obliged the Applicant, inter alia, to actively seek work, keep a jobseeker diary, and report any change in his circumstances. Under the Mutual Obligation Initiative Policy, referred to in the Agreement, and applicable to persons in the age group to which the Applicant belongs, part-time study (but not full-time study) is one of the permitted activities satisfying the Mutual Obligation requirements.

8.        No evidence was provided by either party as to whether the Applicant was engaged in employment during 2003.

9.        On 6 February 2004 the Applicant advised the Centrelink Office at Auburn that he was engaged in full-time study. As a consequence he was given a form of application for an Austudy grant, since he was advised that Newstart allowance would not cover such an activity.

10.      On 31 May 2004 the Centrelink Office at Auburn recorded that the Applicant had not lodged the Austudy claim form issued to him on 6 February 2004, stating that he had lost it. The Applicant informed the Office that he had been studying full-time at Granville TAFE in the course for the Diploma of Accounting. The Office advised the Applicant that a Newstart allowance could only be paid to persons looking for work and that only short course approvals could be given within Newstart. He was advised to lodge his alternative claim under Austudy as soon as possible. He was advised of the possibility that his Newstart allowance could be cancelled.

11.      On 4 June 2004 the Applicant lodged an application for Austudy in respect of the Diploma in Accounting Course No. 9265 at South Western Sydney Institute of TAFE. He had already been enrolled in this course since 9 February 2004. The end date of the course was given as 19 December 2004.

12.      By a letter to the Applicant dated 9 June 2004 Centrelink notified him that his claim for Austudy had been rejected. The reason given for refusal was that “Austudy is not payable to customers who have completed a Masters Degree.” (The Applicant had stated on his application form that he possessed the degree of Master of Engineering Science awarded by the UNSW.)  He was advised that he had the right to appeal against this decision to an Authorised Review Officer (“ARO”) within 13 weeks of notification. The Applicant did not avail himself of this right.

13.      At this point the record of Centrelink falls silent for the remainder of 2004. No action appears to have been taken to follow up the letter of 9 June 2004 rejecting the application for Austudy. The record does not resume until February 2005. The following remarks by the SSAT explain the gap in the record:

“It appears to the tribunal that Mr Yao was granted short course approval during 2004 by default. There is no evidence that any Centrelink officer made a positive decision to permit the full time Diploma of Accounting course to be accepted as an approved activity. This was an administrative lapse on Centrelink’s part but it has caused no injury to Mr Yao except to perhaps lull him into a false sense of security that Centrelink had no problem with his full time study and his Newstart allowance entitlement. However, it is clear to the tribunal that the file note recorded on 31 May 2004 shows that Mr Yao was told face to face (if not in writing) that Centrelink had concerns about his continuing studies as at that date. As the file note states: ‘(customer) was advised (Newstart allowance) payable for customer looking for work and only (short) course approval may be given.’

It seems to the Tribunal that Centrelink have acquiesced and have implicitly granted Mr Yao a short course exemption from the activity test during the period 31 May 2004 to 10 December 2004. They did not put this in writing. However, as Centrelink never cancelled Mr Yao’s Newstart allowance for this period nor raised a debt, his full time study during 2004 was found not to disturb his eligibility for Newstart allowance.”

14.      On 27 January 2005 the Applicant enrolled at Granville College in the Advanced Diploma of Accounting, course code 9266.

15.      On 1 February 2005 the Applicant contacted the Centrelink Office at Auburn regarding his Newstart allowance. The file note stated that “Customer is still studying full time, same advanced diploma for which Austudy was rejected last July. Short course exemption was given for Newstart allowance for six months but now he has commenced Intensive Support and must test his employability for at least 6 months. Advised via interpreter that his NSA [Newstart allowance] requires that he complies with the activity test, breach implications also advised.  This is the second time today he has been advised of this. Austudy claim issued so he can get a formal decision that he can’t be paid as a student.” 

16.      On 20 April 2005 the Applicant entered into a new Preparing for Work Agreement. This obliged him, inter alia, from 20 April to 20 July 2005, to make 10 job search contacts each fortnight and record these in his Jobseeker Diary.

17.      On 2 August the Applicant was advised of the suspension of his Newstart allowance. The letter stated that: “Your Newstart allowance has been suspended because a review of your Jobseeker Diary has indicated that your work efforts and/or availability have been unsatisfactory. This has also resulted in an activity test breach. The breach occurred on 27 July 2005 and as you have had no other activity test breaches in the 2 years immediately prior to this date, your rate will be reduced by 18% from 16 August 2005 until 13 February 2006.” The Applicant was advised of his right to have this decision reviewed.

18.      The Applicant attended the Centrelink office at Auburn on 8 August and was told that the reason why a breach of the activity test had occurred was that only 20 jobs were entered in the Jobseeker Diary.

19.      The copy of the Applicant’s Jobseeker Diary contained in the T documents showed that these entries covered only two fortnightly periods in July 2005, and no earlier periods.

20.      By letter to the Centrelink Authorised Review Officer dated 10 August 2005 the Applicant claimed that he had satisfied the activity test in that:

(a)      He had been engaged in full time study for the Advanced Diploma in   Accounting at Granville TAFE from 17 January 2005;

(b)      He had logged 4 job searches per fortnight with his application for   payment forms since 20 April 2005; and

(c)       He had recorded 10 job search activities each fortnight from 29 June to                 27 July 2005 in his Jobseeker Diary, covering the period of the four   weeks of the TAFE holidays.

21.      The Applicant’s case was reviewed by the Authorised Review Officer (“ARO”), Centreline Area West NSW, whose decision, dated 21 September 2005, confirmed the breach and rate deduction. The decision referred, inter alia, to the Policy Reference: The Guide NSA Activity Testing Full-time Vocational Short Course. The decision described the policy as follows:

“A full-time vocational short course is a course of up to 12 months duration with an employment focus. Generally a person on NSA [Newstart Allowance] would be expected to test their employability in the labour market for at least 6 months before being given approval to participate in a full-time vocational short course. However, a full-time short course can be approved prior to testing employability in the labour market for NSA if participation in the course would clearly improve the recipient’s short-term employment prospects. To improve a person’s short-term employment prospects it would be expected that after completing the course the person would be able to gain employment in the field in which they studies within the following 2 months.”

22.      Applying that policy to the circumstances of the Applicant, the ARO stated that:

“I noted that in your case an exemption from the Activity Test under ‘Short course approval’ had been given to you for the period 03 June 2004 to 10 December 2004 to enable you to complete the 12 month Accounting diploma course. Your 2005 TAFE enrolment forms show that you enrolled in the Advanced Diploma of Accounting at Granville College of TAFE on 27 January 2005 for the first semester and again on 18 July 2005 for the second semester. It can be seen that a period of short course approval had been granted to you in the second half of 2004 and that it would not be appropriate to grant another period of short course exemption before six months of testing your employability in the labour market.”

23.      The Applicant appealed against this decision of the ARO to the SSAT. On 26 October 2005 the SSAT sent the file back to Centrelink pointing out that the ARO had not expressly reviewed the decision not to grant an extension of short course approval, and requesting that such a review be made.

24.      On 23 November 2005 the ARO reviewed and confirmed the decision of 10 December 2004 to refuse to give short course approval after December 2004.

25.      The Applicant gave evidence before the Tribunal in person. He had also sent a letter, dated 3 April 2006, to Mr Bullock (who represented the Respondent before the Tribunal) setting out a statement of issues he wished to raise before the Tribunal. Mr Bullock transmitted this statement to the Tribunal before the hearing.

26.      In his written statement of issues the Applicant raised the following matters:

(a)      Who made the decision to grant short-course approval in 2004 and   when, and why it was limited to a period of 6 months.

(b)      Whether he had a right to appeal against the decision not to grant   short-course approval under Newstart.

(c)       Whether he had the right to assume that he had approval for full time                    study when there was no formal letter or decision advising him to the   contrary.

(d)      Whether Centrelink should be responsible for the consequences of   their failure to advise him of non-approval of his course; and

(e)      The Preparing for Work Agreement of 20 April 2005.

27.      In addition, the Applicant wished to obtain details of all standard procedures applicable to short course approvals, including statistical data. He also wished the Tribunal to call the Centrelink officer who dealt with his case at Auburn, so that he could cross examine her. However, it was reported to the Tribunal that that officer was no longer employed by Centrelink and her whereabouts were unknown. In any event, it had not been demonstrated to the Tribunal how the attendance of this witness, or the material on which she might have been cross examined, would have been relevant to his case.

28.      At the hearing the Applicant confined himself to challenging three of the contentions made on behalf of the Respondent.

29.      The first of these contentions was to the effect that, on 31 May 2004, the Applicant had been informed orally that a Newstart allowance was payable only if he was looking for full-time work, although short course approval might be given. The Applicant disputed that he was told that Newstart could not be paid while he was engaged in full-time study. However, having regard to the fact that on this date the Applicant filed an application for Austudy to cover his full-time study, and this was rejected by letter dated 9 June 2004, it is difficult to accept that the Applicant was unaware that his continuing receipt of benefits under Newstart was irregular.

30.      The second contention by the Respondent was that the Applicant was given a jobseeker diary on 20 April 2005 as part of his Preparing for Work Agreement. The Applicant stated before the Tribunal that he did not receive the diary until 13 July 2005.  However, the Preparing for Work Agreement signed by the Applicant on 20 April 2005 contained the statement that “From 20 APR 2005 to 20 JUL 2005 I will make 10 job search contact/s each fortnight and record these in my Jobseeker Diary….” (Emphasis in original). The jobseeker diary itself, included in the T documents, directs on its cover “Start filling out this Diary on 20/4//05.” 

31.      The third contention disputed by the Applicant was that the Advanced Diploma in Accounting, in which the Applicant was enrolled throughout 2005, was not a continuation of the course in which the Applicant had been enrolled in 2004, but a new course for which no approval had been given. The Applicant claimed that it was all one course. However, this is belied by the fact that the Advanced Diploma has a separate course code number, and is clearly treated by Granville TAFE as a separate course, albeit that satisfactory completion of the earlier Diploma was a prerequisite for enrolment in the advanced course.

32.      Moreover, the Applicant argued that, because he had not been given a specific written decision that his continued full-time study in 2005 (following the “default” approval of the course in which he was enrolled in 2004) was not rejected as an approved activity under Newstart, he was entitled to assume that it was approved.

33.      It is difficult for the Tribunal to accept the Applicant’s arguments. While it is true that there was no written decision communicated to him that he was prohibited from engaging in full time study in 2005, such a decision was implicit in the decision to reject his application for Austudy. It was implicit also in his entering into a Preparing for Work Agreement on 20 April 2005, which required him to look for full-time work. Moreover, the irregularity of his situation, and his options, were explained to him on several occasions orally, at least once in the presence of a Mandarin interpreter.

34.      The Tribunal must conclude that the Applicant ignored all the warnings that he had been given. He stated in evidence that “Centrelink’s policies are not part of law,” and that the terms of the Preparing for Work Agreement of 20 April 2005 were “not reasonable”. Such an attitude displays the Applicant’s conscious disregard of the conditions under which he was receiving a Newstart allowance, and a fixed determination that he would prevail in his ambition to complete two diplomas on a full time basis in preference to seeking work. It may be that, as the SSAT remarked, he had been lulled into a false sense of security by the failure of Centrelink to take punitive action against him in 2004, but this hardly excuses his attitude in 2005.  Nor is there any evidence of misunderstanding on the Applicant’s part. The rules were explained to him on several occasions. He is, moreover, the holder of a Masters degree and two diplomas (the latter was awarded in December 2005 with a Distinction grade) from Australian tertiary institutions. He is an intelligent and educated person.

35.      It is clear to the tribunal that Centrelink was administering rules plainly set out in the applicable legislation and policy. Policy directives, contrary to the argument of the Applicant, are to be given effect by the decision maker, unless the policy is unlawful or its application would tend to produce an unjust decision in the circumstances of the particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, at 645. There is no basis in the circumstances of the present case for regarding the application of the applicable policy as unlawful or unjust.

DECISION

36.      The Tribunal affirms the decisions under review.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Professor Ivan Shearer, Senior Member

Signed:         Associate

Date of Hearing  20 June 2006 
Date of Decision  7 July 2006
Representative for the Applicant               Mr Q Yao, Self-Represented          
Advocate for the Respondent                   Mr K Bullock