1. Swinburne issued a document entitled "Higher Education Teaching Periods". Of relevance in this case are the following dates:

2013 Higher Education Teaching Periods and Census Dates

(1) Mr Alen Tomasevic submitted a 2013 re-enrolment online form on 3 November 2012. He was then enrolled in four subjects together with Careers in the Curriculum, which carries nil Credit Points. This meant that he was enrolled on a full-time basis in the course.

(2) on 31 December 2012, Mr Alen Tomasevic submitted an Application to Amend Enrolment Form so that he:

(a) withdrew his enrolment in the four subjects for which he had enrolled;

(b) continued to be enrolled in Careers in the Curriculum in Semester 1;

(c) enrolled in two other subjects for Semester 1; and

meaning that he was enrolled on a part-time basis for two subjects and Careers in the Curriculum in Semester 1;

(3) on 5 January 2013, Mr Alen Tomasevic submitted a second Application to Amend Enrolment Form so that he:

leaving him with a full-time enrolment in four subjects and Careers in the Curriculum for Semester 1;

(4) on 12 March 2013, Mr Alen Tomasevic submitted a third Application to Amend Enrolment Form so that he:

leaving him enrolled on a part-time basis in two subjects and Careers in the Curriculum in Semester 1;[8]

(a) submitted a fourth Application to Amend Enrolment Form so that he:

(ii) continued to be enrolled in Careers in Curriculum;

leaving him enrolled on a part-time basis in Careers in Curriculum in Semester 1;[9] and

(b) submitted a fifth Application to Amend Enrolment Form so that he:

(i) enrolled in two subjects for Teaching Period 4, or the Winter Term;

leaving him enrolled on a part-time basis in two subjects in Teaching Period 4, or the Winter Term (the Winter Term); and

(i) withdrew from two subjects for Teaching Period 4; and

(ii) applied to be enrolled in two other subjects but was enrolled only in one due to the other course being at full capacity and so then enrolled in an alternative choice of course;

leaving him enrolled on a part-time basis in two subjects in Teaching Period 4;[10] and

(b) in respect of Teaching Period 5, or Semester 2:

(ii) enrolled in two further subjects;[11]

leaving him enrolled on a full-time basis in Teaching Period 5, being Semester 2.

1. In this section of my reasons, I have set out the chronology of events from notes kept by Centrelink and appearing in the T documents.

1. On 27 April 2012, Centrelink wrote to Mr Alen Tomasevic enclosing a statement setting out details of payments made to him, his income and certain other details. It then continued:

"1. ... You need to let us know if any of these details change to ensure you are receiving your correct entitlement.

This lists the changes you must tell us about. You do not need to contact us if you have no changes."[12]

I will return to the document that was enclosed at [56] below.

1. The letter attached a Statement for the period 2 February 2012 to 27 April 2012 showing the most recent eight payments that had been made to Mr Alen Tomasevic. The rate of pay of YAL was $325.30 but, following his being given a Standard Advance of $500.00 on 20 February 2012, his payments of YAL reduced to $286.80 from the payment made on 15 March 2012. He was also entitled to a SSS payable twice a year in the amount of $1,025.00. The date on which it had last been paid was 1 March 2012.[13] Details were also included in the letter about his study:

1. The Statement enclosed with the letter went on to tell Mr Alen Tomasevic that:

"This request is an information notice given under social security law. This means you must give Centrelink all the information Centrelink needs to assess your payment. Giving false or misleading information is a serious offence. The information you give us may be checked under Centrelink's data matching programs.

You must tell Centrelink within 14 days ... if any of the things listed below happen or are likely to happen to you. If any of these changes happen, the amount of payment you get may change. If you are paid too much because you don't tell Centrelink about any of these changes when you have to, Centrelink may make you pay it back. You may also have to pay a recovery fee and you could face legal action.

· You can tell us by writing, calling or coming into any of our offices.

· stop studying as a full-time student; (i.e. your study load drops below 75 per cent of the normal full-time load for your course, for example, the normal full-time load for a HECS course is 0.5 per semester, and 75 per cent of this is 0.375 per semester)

· change your study load (tell us if you stop studying any subjects, start studying any new subjects or if your enrolment changes)

· you are not a school student and you have not been to your course for two weeks.

1. On 21 February 2013, Centrelink wrote to Mr Alen Tomasevic advising him that his regular payment of YAL would be $495.00 from 28 February 2013. To that would be added Rent Assistance of $69.45 and from that would be deducted $38.50 as repayment towards the Lump Sum Advance he had previously received. In addition, Centrelink told Mr Alen Tomasevic:

"· You will be paid a Student Start-up Scholarship to help with the cost of undertaking study. This payment will usually be made at the start of each academic semester.

· To remain eligible for this scholarship you must be studying full time in an approved scholarship course. You must study for at least the first 35 days from the date of qualification for this payment.

· If you do not study for at least the first 35 days, the full amount of this scholarship may be raised as a debt.

· You must notify Centrelink immediately if you stop studying."[15]

1. On 10 April 2013, Dr John Cooper, Psychiatrist, wrote to Mr Milan Tomasevic's General Practitioner. His letter reads, in part:

"As you are probably aware Milan is in the middle of a severe depressive relapse that dates to December. ... He has lost 20kg, struggles to get out of bed and is not eating. He almost seems resigned to death. This situation has been exacerbated by further legal setbacks causing him to feel hopeless and nihilistic. He does not have active suicidal intent.

I have strongly recommended Milan be hospitalised for treatment of his depression ... but he refused. He has also refused referral to the CAT team saying that his son has taken leave from university and is attempting to look after him.

1. Swinburne contacted Centrelink on 12 April 2013 to advise that Mr Alen Tomasevic had ceased full-time study in the course for Semester 1 in 2013.[16] An officer from Centrelink attempted to contact him on that day but was unsuccessful. Acting on that information, a delegate of the Secretary suspended payment of his YAL under s 80 of the Social Security (Administration) Act 1991[17] (SSA Act) pending Mr Alen Tomasevic's advising whether or not he disagreed with the information received from Swinburne.[18] The suspension took effect from 12 April 2013. Centrelink wrote to him on the same day saying "Your Youth Allowance has been suspended pending enquiries about your entitlement."[19]

1. On 18 April 2013, an officer of Centrelink noted that Mr Alen Tomasevic and his father had been advised what had happened and were referred to another team for review of the decision to suspend the YAL. It was suspended on 12 April 2013 and an officer of Centrelink contacted Mr Alen Tomasevic to advise of the suspension and to check that the details it had received from Swinburne were correct.[20] In a note of a separate conversation, Mr Milan Tomasevic made a general enquiry about YAL and spoke with an officer of Centrelink. He was advised to discuss the suspension with the appropriate officers and, that if his son were no longer eligible for YAL, to discuss his eligibility for Carer Payment (CAR) and Child Disability Allowance (CDA).[21]

1. An officer of Centrelink telephoned Mr Alen Tomasevic on 19 April 2013. That officer advised him that he could not be exempted from the requirements for YAL even though he had advised that he had been caring for his father in the recovery period. He was referred to another officer for assistance in claiming Jobseeker payments. He was also told that his YAL would be cancelled with effect from 12 March 2013.[22]

1. Centrelink wrote to Mr Alen Tomasevic on 19 April 2013 advising him of the cancellation on the basis that he was not enrolled at a nominated education institution. If he was not in receipt of a Low Income Health Care Card, he might be entitled to it.[23]

1. Following a further telephone conversation with Centrelink on 19 April 2013, claim forms for New Start Allowance (NSA), YAL and Parenting Payment (PP) were sent to Mr Alen Tomasevic.[24] On 22 April 2013, he contacted Centrelink regarding his claim for NSA and information was obtained from him. He was granted NSA on the same day.[25] A note on Centrelink's file states that:

"NSA granted, cust reduced EFTSL [effective full time study load] to part time to care for his chronically ill father, he is resuming FT study as at the 24/6 but as a result wont qualify for YAL/STU until he returns to FT Study. Checked with SNV who clarified this. Have granted NSA and given carers exemption as CAT team and other sources of intervention have been involved with his father, they believe its only a short term episode hence why the cust returning to FT study on the 24/6. have advised cust that he will need to re apply for YAL in early June. have granted carers exemption during this time. have scanned medical evidence with CDF. Cust aware that due to less the 35 days FTS [full time study] his SSS [Student Start Up Scholarship Payment] has been raised as a debt."[26]

1. On 3 June 2013, Mr Alen Tomasevic lodged a claim for Austudy. A note dated 11 June 2013 records that his claim would not be processed until 24 June 2013. The reason for deferral was that the NSA record might be corrupted if it were to be processed before the date on which the course would start.[27]

1. On 7 January 2014, a delegate of the Secretary made a decision to recover the amount of YAL paid to Mr Alen Tomasevic in the period from 27 February 2013 to 10 April 2013 because he had ceased his studies. Consideration was given to whether the debt should be waived and a decision made that it should not be waived because he had failed to advise that he had ceased his studies on 12 March 2013. A decision was made on the same day to recover the SSS because he had not met the requirement to study for at least 35 days from the date of his qualifying for the payment.[28]

1. On 22 January 2014, Centrelink noted that Mr Alen Tomasevic had not been issued SSS for the second scholarship period in 2013. That had been due to incorrect coding and arrangements were made to pay it to him.[29]

1. Centrelink sent an account dated 5 February 2014 requiring payment of a total sum of $2,337.40.[30] An amount of $1,025.00 represented the amount paid as SSS.[31]

1. On 3 March 2014, Mr Alen Tomasevic contacted Centrelink seeking review of the decision. His grounds were that he had taken a semester away from his studies to care for his sick father. He said that he and his father had received advice from a Centrelink officer that he had received a special exemption to allow Mr Alen Tomasevic to remain a student even though not studying full-time.[32]

1. On 3 March 2014, Mr Alen Tomasevic was granted CAR with effect from that day.[33]

1. Returning to the review, an Authorised Review Officer (ARO) discussed the matter with Mr Milan Tomasevic and sought further information regarding the issue of a special exemption before affirming the decision to raise and recover the debt. He did so on 2 April 2014.[34] The ARO's note of his conversation with the Centrelink officer nominated by Mr Milan Tomasevic, whom I have previously referred to as "Centrelink Alan", reads:

"... I asked Allan about A/N father's claims that he was advised by him that ... A/N could remain as a student whilst not studying F/T. Allan advised that he had a strong background in students and would not have advised A/N that and recalls that it was only when he claimed NSA that he became aware that he was not studying F/T."[35]

1. At Attachment B, I have set out the provisions relating to the grant of Youth Allowance. Except in relation to the activity test, it has not been questioned that Mr Alen Tomasevic satisfies the criteria set out in s 540 to qualify for YAL. As he has been studying, he was required to satisfy the activity test set out in s 541(1)(a) of the SS Act. In order to pass that test, he had to be "undertaking full-time study" and so undertaking at least three-quarters of the normal amount of full-time study in respect of his course. He had to be undertaking that full-time study in Semester 1 which I have found commenced on 4 March 2014 and concluded on 2 June 2014.

1. On the basis of the material from Swinburne, I find that, Mr Alen Tomasevic initially enrolled for the 2013 Semester 1 on 3 November 2012. At that time, he enrolled to undertake a full-time study load. He subsequently amended his enrolment on four occasions that related to the period under consideration in this case. A further amendment was made on 27 March 2013 and so within the recovery period but it related to the Winter Term and not to Semester 1. Mr Alen Tomasevic submitted a further enrolment on 20 June 2013 but that related to the Winter Term and to Semester 5 and so to a period outside the recovery period. Having regard to his initial enrolment and to his four subsequent amendments, I find that Mr Alen Tomasevic was enrolled in Semester 1 on the following dates for the following periods:

1. It follows that, in the period from 27 February 2013 to 3 March 2013, which was the day before Semester 1 began, Mr Alen Tomasevic was enrolled on a full-time basis at Swinburne. He continued to be enrolled on a full-time basis from the start of Semester 1 on 4 March 2013 to 11 March 2013. Thereafter, he was enrolled on a part-time basis. The courses for which he was enrolled in that period varied but the variations make no difference to the nature of his enrolment being on a part-time basis.

1. The effect of s 541B(4) of the SS Act is that it deems a person to be undertaking full-time study in respect of a course during the relevant period if he was enrolled in the course and undertakes study in respect of that course on at least one day in the period beginning on the first day of the study period (4 March 2013 in this case) and ending on the Friday of the second week of classes in the study period (15 March 2013 in this case). On the evidence that I have from Swinburne, I am satisfied that Mr Alen Tomasevic was enrolled in the course during this period. The basis on which he was enrolled is a matter to which I will return. I am not satisfied that he undertook any study in respect of the course on any day in that period. I am not satisfied because there is no evidence from Mr Alen Tomasevic as to what he was doing in that period. The only evidence that I do have is from his father and that is to the effect that his son was caring for him and could not leave him.

1. Returning to the enrolment issue, I find that Mr Alen Tomasevic was not enrolled on a full-time basis for the whole of the study period referred to in s 541B(4). He was enrolled on that basis only from 4 March 2013 until 11 March 2013. After that time, he was enrolled only on a part-time basis and could not undertake at least three-quarters of the normal amount of full-time study in respect of the course and so could not be regarded as undertaking full-time study.

1. It follows that I am not satisfied that Mr Alen Tomasevic was undertaking full-time study on and from 12 March 2013. Therefore, unless he is entitled to an exemption from the activity test, he did not satisfy it from that date.

1. In essence, Mr Milan Tomasevic argued that his son's circumstances were special because he had to look after his father. At the time, his son could not know whether his father would, or would not, commit suicide if he were to leave him on his own. It is not a usual thing that a child will give up his life and his activities to care for his father like this. In view of Mr Milan Tomasevic's submissions, I have had regard to s 542H(1) of the SS Act. It is set out at [102] below. It must be read with s 542 which provides that, for the purposes of determining qualification for YAL, a person is not required to satisfy the activity test in respect of a period if, throughout the period, that person meets one or other of the eight circumstances set out in that section. Among those circumstances are those specified in s 542H(1). They must be "special circumstances beyond the person's control" and I must be satisfied that "it would be unreasonable to expect the person to satisfy the activity test for that period".

1. In making that decision, regard must be had to the guidelines made by the Minister by way of legislative instrument.[36] I have been unable to locate a legislative instrument setting out guidelines of the sort referred to in s 542H(1B). I have found Section 3.2.11.40 of the Guide to Social Security Law (Guide) is headed "Activity Test for NSA/YA Job Seekers - Exemptions - Special Circumstances".[37] The Guide is not a legislative instrument but is provided by the Secretary to guide delegates in making decisions. Against that background, I note that, under the subheading "Basis for exemption", the section begins with the statement:

"Where circumstances arise that impede, rather than prevent, a job seeker from meeting their usual requirements, consideration should be given first to adjusting or reducing these requirements in preference to exempting the job seeker from the activity test (1.1.A.40) completely.

However, there will sometimes be circumstances that are UNFORESEEN or UNAVOIDABLE and cause major disruption for the job seeker, where it would be unreasonable to expect the job seeker to meet any of their requirements for a specific period of time.

The following are categories of special circumstance exemptions that may arise:

• • major personal disruption to the job seeker's home,
• • major personal crisis (including homelessness),
• • affected by declared natural disaster, e.g. bushfire, flooding or cyclone,
• • temporary caring responsibilities,
• • dad and partner leave,
• • undertaking jury duty,
• • being a newly protected witness,
• • being a newly arrived refugee,
• • volunteering during a state or national emergency, or
• • undertaking Indigenous cultural business."

1. Each of the topics is developed later in the document. In so far as the Temporary care of an adult is concerned, the entry reads:

"A person who cannot meet the requirements of their activity test because they are required to provide care for another person should test their eligibility for CP [Carer Payment].

A special circumstances exemption may be applied when a person is unexpectedly required to provide full-time care for an adult. An exemption should only be applied if no alternative caring arrangements are available and CP is not payable to the carer. The exemption should only be applied for the period of time required to make alternative arrangements for the care of the adult and should not exceed 13 weeks."

B.1 What is meant by the expression "special circumstances"?

1. The expression "special circumstances" has often been described as requiring circumstances that are unusual, uncommon or exceptional. This description has its origin in the following passage from the reasons for decision of the Tribunal in Re Beadle and Director-General of Social Security:[38]

" An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special."[39]

1. The context in which the Tribunal expressed these views is important. It is that of the Social Security Act 1947 (1947 Act), which preceded the SS Act. The issue under consideration was whether there had been special circumstances justifying a decision to pay a handicapped child's allowance from the date on which Mrs Beadle became eligible to claim in respect of her daughter even she lodged the claim some three years after that date. At the time, the 1947 Act did not use the expression "exceptional circumstances" in any provision but only the expression "special circumstances". In assessing whether Mrs Beadle's circumstances were special, the Tribunal said:

" But it is not helpful to focus too closely on each particular circumstance of the applicant and ask whether it is special. Of itself it is unlikely to be special for there would be many in a similar situation. The question is whether, when the relevant circumstances of the applicant are looked at in their entirety, they may fairly be described as unusual, uncommon or exceptional so as to warrant payment of the allowance earlier than the date on which it would ordinarily be paid."[40]

1. On appeal,[41] the Full Court looked at the six month period permitted by the legislation for lodgement of a claim:

"... Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate. For example, where the delay beyond six months was due to the claimant's being misled by a departmental officer or was due to the negligence of a third party it might be thought the normal six months would be inappropriate; that special circumstances had been shown which warranted a longer period. More difficult would be questions of ignorance, illiteracy, isolation, illness and the like. It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase "special circumstances", although lacking precision, is sufficiently understood in our view not to require judicial gloss."[42]

1. In the later case of Dranichnikov v Centrelink,[43] Hill J, with whom Kiefel and Hely JJ agreed, said that "... The reference to the first instance decision from which the words 'unusual, uncommon or exceptional' come was not actually affirmed by the Full Court."[44] In the case of Angelakos v Secretary, Department of Employment and Workplace Relations,[45] Besanko J observed that:

"... the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word 'exceptional' is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to the exceptional case. There is less risk of overstatement if the words 'unusual' or 'uncommon' are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the statutory context."[46]

1. Although in the context of the criminal law and in relation to the notion of "special reasons", the statement by Gleeson CJ in Baker v The Queen[47] is relevant also in this context. Section 13A(3A) of the Sentencing Act 1989 (NSW) provided that a person who was the subject of a non-release recommendation was not eligible for the determination of a minimum term and an additional term under that provision unless the Court was satisfied that special reasons existed that justified the making of the determination. In his judgment, Gleeson CJ said:

" There is nothing unusual about legislation that requires courts to find 'special reasons' or 'special circumstances' as a condition of the exercise of a power ... This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors."[48]

1. These authorities show that there is no precise definition of what is meant by "special circumstances". Regard must first be had to the particular provision in which the expression is used. It will be a provision ameliorating, and so moderating or modifying, the operation of another provision. Amelioration may be provided for simply on the basis that there are special circumstances or it may arise only if those special circumstances meet some further criterion e.g. they are outside the person's control, they could not have been reasonably foreseen or they occurred in a particular time period.

1. Having identified the scope of the particular provision, regard must then be had to the wider legislative context in which the ameliorating provision appears and what it is that is being ameliorated. It is against that background that a person's circumstances must be examined and weighed.

1. Having regard to the person's circumstances in so far as they meet any additional criterion, consideration is then given to whether those circumstances take the person outside the circumstances of those people generally affected by the particular legislative provision whose operation may be ameliorated. The question is then asked whether, in the particular case, it would be unfair or inappropriate to allow the legislation to operate in the usual way.

B.2 Are Mr Alen Tomasevic's circumstances special circumstances?

1. YAL is only paid to a person who meets the criteria specified by Parliament. One of those criteria is the activity test. Parliament has provided that it can be met in a variety of ways. It is apparent from s 542 of the SS Act that allowance is made for the certain circumstances, some of them unexpected, that mean a person cannot meet the activity test. They are not, however, circumstances in which a person, faced with alternatives, chooses to do one thing over another. The SS Act does not permit a recipient to pick and choose the payments to which he or she is entitled. It does not permit a person to retain a payment while not meeting the qualifications for that payment unless expressly permitted by the SS Act. It is in that light that the special circumstances exemption provided for in s 542H must be regarded.

1. In this case, the relevant activity that Mr Alen Tomasevic was required to fulfil was that of undertaking full-time study. On the basis of the Course Structure prepared by Swinburne, I am satisfied that it expected that a full-time student would generally undertake four units of study each worth 12.5 credit points. A credit point is deemed by that university to be the equivalent of one hour of student work per week over a semester, whether in contact with staff or in private study. It expected that a typical student's average workload during semester would be 50 hours per week.[49]

1. That would mean that Mr Alen Tomasevic can be expected to have been very stretched if he were trying to care for his father and undertake a full-time study load. Any student in his situation would have been. Whether he found the situation one in which he could not balance the competing demands of study and his father is not one on which I can make any findings. I do not have any evidence from him. He did not come to the hearing. I do have some emails written by him to Swinburne when he was changing his enrolment but he never explained his reasons for doing so. I accept that his father thinks he knows what his son was thinking but I cannot accept Mr Milan Tomasevic's evidence as evidence from his son.

1. That brings me to the options that could have been explored so that Mr Alen Tomasevic decided that he could not meet the full-time study requirement under the activity test. Those options must be seen in light of the statement by Mr Milan Tomasevic's psychiatrist, Dr Cooper, that his patient did not have an active suicidal intent.[50] That statement contradicts Mr Milan Tomasevic's statement that he was suicidal and there is no evidence of Mr Alen Tomasevic's perceptions of the situation.

1. Whether there were other persons who could have assisted in Mr Milan Tomasevic's care while his son continued his studies is also relevant. Mr Milan Tomasevic referred during the hearing to his son's sister but I have no statement or material from her or regarding her availability. What I do have is Dr Cooper's strong recommendation that Mr Milan Tomasevic be hospitalised and he went so far as to suggest a particular clinic in which he should be hospitalised and treated for depression. Dr Cooper also suggested that he be referred to a Crisis Assessment Team (CAT) team. Whether Mr Milan Tomasevice chose to accept Dr Cooper's recommendations or not is entirely a matter for Mr Milan Tomasevic but his refusal does not change the fact that other forms of care were available to him other than his son.

1. Mr Milan Tomasevic chose his son over those other forms. I have no evidence from Mr Alen Tomasevic regarding that choice but assuming that he took on the carer role, he had choices to make as well. His father's choices were not his choices. He may have felt under an obligation to abide by his father's choice that he look after him. I do not have any evidence from Mr Alen Tomasevic to know how he felt or what he saw as his options. Even in the absence of his evidence and assuming that he felt under an obligation to his father, I am satisfied that he did have choices. He had a choice of advising Centrelink that he was no longer studying full-time and of applying either for a Carer Payment or for a Newstart Allowance with an exemption from compliance with the relevant activity test under s 603A.

1. Section 603A must be read with s 541 of the SS Act. Section 541 sets out the activity test that a person must satisfy in qualifying for YAL. The relevant activity that Mr Alen Tomasevic was required to undertake was that of full-time study.[51] What is meant by "undertaking full-time study" is the subject of s 541B. I have set out the relevant provisions at [96]-[100] in Attachment B.

1. Section 603A(1) qualifies the requirement to satisfy the activity test. It provides that, subject to ss 603A(2) and (3), a person is not required to satisfy the activity test for a period if:

"(a) the person is satisfied that special circumstances beyond the person's control, exist; and

(b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to comply with the activity test for that period."

1. Mr Alen Tomasevic chose to do neither. It may be that his frequent changes of enrolment in the relevant period and prior to it show confusion and uncertainty about what to do but, in the absence of hearing evidence from him, I cannot draw that conclusion or even that any confusion or uncertainty that he might have experienced related to his father's illness.

1. On the evidence that I have, I am not satisfied that Mr Alen Tomasevic's circumstances take him outside the ordinary run of cases in which people find themselves with competing demands on their time and, indeed, on their emotional reserves and with choices that they must make. Furthermore, they were not special circumstances that were out of his control. While his father's illness was a matter outside his control, the choices that he made to deal with his circumstances were within his control. He could have deferred his studies, contacted Centrelink and made other arrangements to cover his situation. His decision not to do any of those things but to continue to receive YAL were matters within his control.

1. Mr Milan Tomasevic referred to the SSAT's finding that there were special circumstances. Inherent in what he said is the proposition that, if the SSAT found special circumstances, so should I. I do not accept that proposition. The SSAT found that there were special circumstances in considering whether or not the debt of YAL should be waived. That is a situation in which, had Mr Alen Tomasevic reported his circumstances to Centrelink at an earlier time, his entitlement to payments such as Carer Payment and Newstart Allowance (NSA) would have been explored. That is a context completely different from this context. The question is not whether a debt should be waived when the person might not have accrued the debt at all had he taken a different path. The question is whether he should have been required to undertake the relevant activity to meet his obligation in relation to an activity test. It is not the case that he could have fulfilled the activity test in a different way. There was only one way - the way that he had chosen - and the question is whether there are special circumstances justifying a decision that he should be exempted from the requirements of the activity test. I have answered that question in the negative.

1. The notice sent by Centrelink to Mr Alen Tomasevic in its letter of 27 April 2012 required him to notify it within 14 days if he stopped studying as a full-time student or changed his study load by ceasing to study any subjects, beginning to study new subjects or changing his enrolment. That was a notice given to him under s 68(2) of the SSA Act. I am satisfied that Mr Alen Tomasevic did not advise Centrelink of any of the changes he made to his enrolment as he was required to do by that notice. In particular, he did not advise it of the changes made to his enrolment on 12 March 2013. That meant that he could no longer satisfy the activity test and was not qualified for YAL. His failure to comply with the notice brought s 94(1) into play so that Mr Alen Tomasevic's YAL was cancelled by force of that provision on 12 March 2013 even though Centrelink did not become aware that he was not qualified until the later date of 10 April 2013.

1. Qualification for YAL relates to a period. YAL is payable in arrears.[52] It is a daily rate worked out by dividing the fortnightly rate calculated in accordance with the Rate Calculator in Part 3.5 by 14.[53] As he did not satisfy the activity test on 12 March 2013 that meant that he was not qualified for it in the period leading up to that date i.e. from 27 February 2013 until 11 March 2013 and the subsequent periods from 12 March to 10 April 2013. The amount paid to him in that period becomes a debt by virtue of s 1223(1) as Mr Alen Tomasevic had obtained the benefit of the payment and was not entitled to it.[54]

1. The SSAT has waived recovery of that debt and the Secretary has not asked that its decision be reviewed. In view of that, I have not considered that issue further and affirm the decision to waive the debt relating to overpayment of YAL in the period from 27 February 2013 to 10 April 2013.

A. Qualification for student start-up scholarship

1. I have set out the relevant legislative provisions in Attachment A. In order to qualify for SSS, s 592F(1)(a) of the SS Act required that, at the "qualification time", Mr Alen Tomasevic both be qualified for YAL and that it be payable to him. At that time, Mr Alen Tomasevic was qualified for YAL but, for the reasons I have given, it later transpired that he was not. YAL was also payable to him at the qualification time but, again for the reasons I have given, it later transpired that it was not. As he was not qualified for YAL at qualification time, he was not qualified for SSS.

1. For the reasons I have given at [86] below, a SSS is a social security payment. As Mr Alen Tomasevic was not entitled to SSS, the amount paid to him as SSS is a debt under s 1223(1) of the SS Act.

1. It may also a debt under s 1223ABE(3), which is set out at [89] below. I have already found that the course that Mr Tomasevic was undertaking at Swinburne was an approved scholarship course.[55] He qualified for the payment on 28 February 2014 but, I find, was not undertaking full-time study 35 days after qualifying for it. Provided the reason for his not undertaking full-time study was not one that was "because of exceptional circumstances beyond his control" within the meaning of s 1223ABE(4), that amount paid by way of SSS becomes a debt payable to the Commonwealth.

1. At the hearing, there was some debate about the meanings of the terms "exceptional circumstances" and "special circumstances" and whether they were the same or different. In this case, the debate is not particularly relevant for the amount paid to Mr Alen Tomasevic is a debt under s 1223(1) regardless of whether it is also a debt under s 1223ABE(3). As it was addressed, though, I will explain why I think the two terms have different meanings.

1. I have already set out my understanding of the meaning of "special circumstances" at [37]-[44] above. My understanding remains the same but I will begin by setting out the range of meanings that the word "special" has in ordinary language when it is used, as in the expression "special circumstances", as an adjective. It means:

"... 1 distinct from, and usually better than, others of the same or a similar kind; exceptional □ a special occasion □ She was very special to him. 2 designed for a particular purpose □ You can get a special program to do that. 3 not ordinary or common □ special circumstances. 4 particular; great □ make a special effort. ..."[56]

1. It is clear from the range of meanings that the context very much determines what is meant by the word. In the context of ameliorating provisions in various enactments considered over the years, the courts have moved away from the first meaning of "exceptional". Instead, they have taken the view that it is the third that is relevant i.e. not ordinary or common.

1. The ordinary meanings of the word "exceptional", which is only used as an adjective, are:

"1 remarkable or outstanding. 2 being or making an exception. ..."[57]

1. The word has also been considered in a number of authorities. Among them is Re Gale and Australian Fisheries Management Authority[58] (Gale), in which Senior Member Handley and Associate Professor Davis reviewed earlier authorities that had considered the meaning of "exceptional circumstances". One of the authorities they examined was Kent v Wilson[59] in which Hedigan J said:

"21. I have no inclination to embark upon any attempt to define what the phrase 'exceptional circumstances' means. ... I have, longer ago than I care to remember, expressed my view concerning statutory expressions of this kind. This was not in the context as is frequently encountered, the issue of exceptional circumstances within the meaning of s.13 of the Bail Act but in the context of an issue as to whether or not committal proceedings had been commenced in the three months after commencement of the proceedings for the offences. See Owens v. Stevens (unreported, 3 May 1991).

'The use of the phrase "exceptional circumstance" is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.

Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning "unusual, special, out of the ordinary course". This does mean any variation from the norm.

The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.

Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.'"

1. In the earlier case of Nikac v Minister for Immigration and Ethnic Affairs[60] (Nikac) to which the Tribunal in Gale also referred, Wilcox J considered whether there were exceptional circumstances that justified the Minister in refusing to accept a recommendation by the Tribunal that the applicants not be deported. It was his view that the circumstances of the applicants were not exceptional but Wilcox J acknowledged that it was not for him to substitute his view for that of the Minister. What he had to do was to decide if the Minister's view that there were exceptional circumstances was a reasonable view to hold. In the course of concluding that the Minister's view was not unreasonable, his Honour observed:

" Notwithstanding my own view about the Minister's conclusions that the circumstances in the cases of Mr Nikac and Mr Gogebakan are 'exceptional', I do not think that it is possible to say that the Minister's contrary view is devoid of plausible justification. The term 'exceptional circumstances' postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Mr Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the Tribunal, by whom both the offences and all the other relevant circumstances were considered. But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, 'exceptional circumstances' lies in the eye of the beholder."[61]

1. In more recent times, the meaning of the expression "exceptional circumstances" was considered by Kiefel J in Hatcher v Cohn.[62] She did so in the context of the Health Insurance Act 1973 (HI Act). Dr Hatcher had been disciplined on the basis that his performing 80 or more professional attendances per day on 37 occasions between January and November 2000 breached the level prescribed by s 106KA of that legislation and constituted inappropriate practice within the meaning of s 106KA(1). He was disqualified from participating in the Medicare system for four weeks. Dr Hatcher sought review of the decision on the basis that he worked in a disadvantaged rural area that suffered from a shortage of bulk-billing doctors. He argued that "exceptional circumstances existed that affected the rendering or initiating of services ..." on the days in the relevant period. If that was so, s 106KA(2) would come into effect with the result that his conduct could not be said to have constituted his engaging in inappropriate practice.

1. In her judgment, Kiefel J made the following points with regard to the interpretation of "exceptional circumstances" that apply in any statutory context:

(1) "... The words 'exceptional circumstances' may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision. ..."[63]

(2) " The process of construing words in a statute must always begin with an examination of the context of the provision being construed: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, [69]. As was there pointed out, the object of statutory construction is to construe a provision so that it is consistent with the language and the purpose of the provisions of the statute as a whole. It is necessary to give meaning to each word of a provision (at 382, [71]). And words are to be assumed to be used consistently: Craig, Williamson Proprietary Limited v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452, unless a contrary intention appears."[64]

1. In the particular context of s 106KA(2) and, more generally, in the context of s 106KA and the HI Act, Kiefel J approached the analysis of whether there were exceptional circumstances in this way:
   • (1) " Section 106KA(2) has the effect that a finding of inappropriate practice which would otherwise be made under s 106KA(1) is not to be made. The reason it is not made is that the Committee is satisfied that the explanation provided by the practitioner, as to why the practitioner was required to attend upon so many patients on the days in question, identifies exceptional circumstances. The 'exceptional circumstances' are therefore an unusual circumstance or circumstances which caused or influenced the practitioner to exceed the number of services which ought to have been provided or which otherwise provides the explanation for that conduct. This connexion is confirmed by the reference in the subsection to circumstances which existed 'that affected' the rendering of services."[65]
   • (2) " It does not seem to me that the 'exceptional circumstances' in s 106KA(2) should be read as importing some temporal element. The words are not directly qualified and there is nothing in the purpose or object of the subsection which would suggest that such a limitation was either intended or necessary. The purpose of the provision is to protect a practitioner where the large number of consultations are shown to have been brought about by circumstances which are out of the ordinary and, one would think, beyond their control. Protective provisions ought not be construed in such a way as to limit their scope: Day & Dent Constructions Pty Ltd (In Liquidation) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed) [1982] HCA 20; (1982) 150 CLR 85 at 107 - 108 per Mason J. ..."[66]

1. As Ms Bramley's researches show, the expression "exceptional circumstances" is used in the SS Act in eight sections. Apart from its use in s 1223ABE, the expression is used in ss 9A, 1061PL, 1067A, 1185B, 1185R, 1206L, 1206T. The ways in which the expression is used in those sections fall into three groups. They are:

(1) a person would have satisfied a specified criterion but for "exceptional circumstances beyond his or her control" or failed to satisfy that criterion because of "exceptional circumstances beyond his or her control";[67]

(2) "the person's circumstances are exceptional and could not reasonably have been foreseen at the time of the person's application for ..." a payment of some type or before the person took a particular action;[68] and

(3) a person cannot live at home "because of extreme family breakdown or other similar exceptional circumstances".[69]

1. The term "special circumstances" is used much more frequently. Having regard only to ss 1 to 660M appearing in the first volume of the electronic version of the SS Act, the expression is used in eleven sections.[70] Of those sections, three of them are concerned with matters relating to the YAL. In particular, they are concerned with situations in which a person is not required to satisfy the activity test in respect of a period. Section 542 provides for those situations by reference to other provisions of the SS Act. Of particular relevance in this case is s 542H, to which I have referred at [34] above.

1. What this short summary shows is that Parliament has chosen on occasion to require there to be "special circumstances" whether qualified in some way or other or not and, on others, to require there to be "exceptional circumstances" whether with or without qualification. It follows that the two expressions cannot be read as referring to the same types of circumstances. It would seem that, when the expression "exceptional circumstances" is used, it requires an additional quality taking the circumstances beyond those that would be regarded as "special circumstances". That quality might be described as taking the circumstances to those that are remarkable or outstanding or worthy of making an exception but, beyond that, it is not possible to capture what would make circumstances exceptional rather than special. The context, both legislative and evidentiary, will be all important for, to adopt the words of Wilcox J in Nikac:

"... Like beauty, 'exceptional circumstances' lies in the eye of the beholder."[71]

B.4 Are Mr Alen Tomasevic's circumstances exceptional circumstances?

1. I have already considered Mr Alen Tomasevic's circumstances in relation to whether they amounted to "special circumstances" in the context of s 542H so that he would have exemption from the activity test in the form of his undertaking full-time study. The circumstances relied on by Mr Milan Tomasevic are the same. I will not repeat them.

1. In deciding whether the ameliorating provision in s 1223ABE(4) should relieve Mr Alen Tomasevic of the consequences of his failing to undertake full-time study in his approved scholarship course, his circumstances must not only be exceptional but they must be circumstances beyond his control. At [45]-[55] above, I have already given my reasons for finding that they were not out of his control. While his father's illness was a matter outside his control, the choices that he made to deal with his circumstances were within his control. He could have deferred his studies, contacted Centrelink and made other arrangements to cover his situation. His decision not to do any of those things but to ignore his studies were matters over which he had a choice, however difficult that choice was to make.

1. Putting aside the requirement that the circumstances be beyond Mr Alen Tomasevic's control, I am not satisfied that his circumstances are exceptional. The SSS is given to students over and above YAL for the purpose of enabling them to continue their studies. A SSS differs from a YAL paid on the basis that a student is undertaking full-time study for, unlike YAL, it is not a payment for which an equivalent payment is available if a student's circumstances change. In the case of YAL, I have already mentioned that Mr Alen Tomasevic had the option of applying for Carer Payment or for NSA with an exemption from the activity test. Those payments would have continued to have maintained his income. SSS is given for one purpose only and that is for the purpose of study. As I have said before, I do not have any evidence from Mr Alen Tomasevic as to why he ceased his full-time studies. I have statements from his father but it is Mr Alen Tomasevic's circumstances that are relevant. His circumstances overlap with those of his father but the fact that his father was ill is not enough. Unfortunately, family illness and difficulties are not uncommon events. Choices have to be made. In the absence of any evidence from Mr Alen Tomasevic, I am not satisfied that his circumstances distinguish him from the ordinary or usual case of students who do not undertake their full-time study load. I am not satisfied that it would be either unfair or unjust to require him to repay SSS when he has not undertaken the study.

CONSIDERATION: should the debt relating to SSS be waived?

1. I have set out the terms of s 1237A(1) at [112] below. In order to come within its terms, the debt must be attributable solely to an administrative error made by the Commonwealth and so, in this case, by a delegate of the Secretary. I understand that Mr Milan Tomasevic places a lot of blame at the door of Centrelink Alan, if there were any blame to lay, it would not relate to events before he, his son and Centrelink Alan first met in April 2013. I have set out the events relating to Centrelink Alan at [27] above including his clear denial of Mr Milan Tomasevic's version of their conversation. Centrelink Alan was not in a position to affect events before that time. All of the events relevant to the payment of YAL and of SSS and of Mr Alen Tomasevic's not undertaking full-time study arose before that time. No blame can be laid at Centrelink Alan's door in relation to those matters. Instead, I find that the debt arose because Mr Alen Tomasevic did not comply with the notice issued to him under s 68(2) of the SSA Act, did not undertake full-time study as he was required to do and, even though he was in regular touch with Swinburne regarding his enrolment, took no steps to approach Centrelink to change to a payment more suited to his circumstances. Therefore, I am not satisfied that the debt must be waived under s 1237A of the SS Act.

1. That brings me to s 1237AAD. Before I can decide whether or not I should waive the debt under that section, I must be satisfied that Mr Alen Tomasevic did not knowingly fail or omit to comply with a provision of the SS Act, the 1947 Act or the SSA Act. In the circumstances of this case, that provision would be s 68(2) of the SSA Act. I must also be satisfied that there are special circumstances, other than financial hardship alone, that make it desirable to waive the debt.

1. As the debt arose by operation of s 1223ABE(3) because Mr Alen Tomasevic was not undertaking full-time study at the relevant time, this is not a situation in which the debt arose as a result of his either wholly or partly knowingly making a false statement or failing or omitting to comply with a provision of the SS Act, the 1947 Act or the SSA Act. It follows that the requirements of s 1237AAD(a) have been met.

1. That takes me to those of s 1237AAD(b). That provision requires me to consider whether there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt incurred in relation to SSS. I do not have any evidence from Mr Alen Tomasevic as to his state of mind when he failed to undertake full-time study. Mr Milan Tomasevic emphasised that his son was busy looking after him. Implicit in what he said was that his son was too distracted by his responsibilities to study and that he made up for the workload in later study periods. I have no reason to doubt that Mr Alen Tomasevic did make up for the workload in later study periods and that he completed the degree. That fact is not relevant for the payment of SSS is made on a particular day and determined by qualifications specified by reference to a particular period. Whether a person meets the qualifications in a later period or makes up for the study load not completed in a later period is not relevant.

1. The reasons I have given for reaching that his circumstances are not special circumstances justifying exemption from the activity test under s 542H of the SS Act are equally applicable under s 1237AAD. I adopt them. The difficulties that Mr Alen Tomasevic faced during his father's illness were no doubt extremely trying and emotionally draining. Even though I do not have his evidence so that I can make a finding on the matter, it is feasible that he did not have the energy to attend to his studies. This does not make his circumstances special, though. Other people face situations in which their energies and attention are distracted from what they want to be their main focus. This is not a case in which, had he approached Centrelink, he could have received a different type of payment. A SSS is not an income maintenance type of payment such as YAL. It is a payment made on the basis that a person will undertake a certain activity. I am not satisfied that there is anything unjust or unfair in requiring Mr Alen Tomasevic to repay the debt as the SS Act expects other students to do when they have not undertaken the required amount of study.

1. For the reasons I have given, I affirm the decision of the Social Security Appeals Tribunal dated 23 May 2014.

LEGISLATIVE FRAMEWORK: Student Start Up Scholarship payment

Qualifications for a Student Start Up Scholarship Payment

1. Section 592F of the SS Act sets out the criteria that a person must meet in order to be qualified for SSS. It does so by reference to whether that person is in receipt of YAL or Austudy. As Mr Alen Tomasevice was in receipt of YAL, I will set out only those criteria relating to a person in that position:

"A person is qualified for a student start up scholarship payment at a time (the qualification time) if:

(a) at the qualification time, the person qualified for youth allowance and youth allowance is payable to the person; and

(b) at the qualification time, the person is receiving youth allowance and would be receiving youth allowance if steps 2 and 3 of the method statement in point 1067G A1 of the Youth Allowance Rate Calculator were disregarded for the purposes of working out the person's rate of that allowance; and

(c) the person is receiving youth allowance because the person is undertaking full time study in an approved scholarship course; and

(d) the Secretary is satisfied that in the period of 35 days starting immediately after the qualification time, the person proposes to start to undertake the course or to continue to undertake the course; and

(e) the Secretary is satisfied that the person is not likely to receive the amount or value of a Commonwealth Education Costs Scholarship in the period of 6 months starting immediately after the qualification time.

Note: For approved scholarship course, see section 592M."[72]

"(a) a course of study or instruction approved by the Minister under a determination made for the purposes of section 592N; or

(b) if no determination is in force - a course determined to be a tertiary course under section 5D of the Student Assistance Act 1973 for the purposes of that Act."[73]

The course undertaken by Mr Tomasevic was an approved scholarship course.

Circumstances in which SSS recipient incurs a debt

1. Section 1223(1) applies if a social security payment has been made and if "a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit."[74] If those two criteria have been met then, subject to s 1223:

"... the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment."[75]

1. Section 23(1) of the SS Act provides that a "social security payment" means a social security pension, a social security benefit, an allowance under the SS Act, any other kind of payment under Chapter 2 of the SS Act or a pension, benefit or allowance under the Social Security Act 1947 (1947 Act). A SSS meets paragraph (e) of the definition of a social security payment on the basis that it is a payment under Chapter 2 of that Act.[76]

1. Section 1223ABE(1) provides for the situation in which a person is paid SSS on the basis of proposing to undertake an approved scholarship course but does not start to undertake that course:

(a) has received a student start-up scholarship payment or a relocation scholarship payment because the person is proposing to undertake an approved scholarship course; and

(b) does not start to undertake full-time study in an approved scholarship course;

(b) the amount of the payment is a debt due to the Commonwealth; and

(c) the debt is taken to have arisen when the person received the payment.

However, this subsection does not apply if, in the Secretary's opinion, the person does not start to undertake full-time study in an approved scholarship course because of the exceptional circumstances beyond the person's control.

Note: For approved scholarship course, see section 592M."

1. Section 1223ABE(2) also provides for the situation in which a person is paid SSS on the basis of proposing to undertake an approved scholarship course but, although starting that course, does not continue to undertake it:

(a) has received a student start-up scholarship payment or a relocation scholarship payment because the person is proposing to undertake an approved scholarship course (the qualifying course); and

(b) starts to undertake an approved scholarship course; and

(c) is not undertaking full-time study in an approved scholarship course at the end of 35 days after the qualifying course commences;

(d) the amount of the payment is a debt due to the Commonwealth; and

(e) the debt is taken to have arisen when the person received the payment.

1. Section 1223ABE(3) relates to the situation in which a person is undertaking an approved scholarship course:

(a) has received a student start-up scholarship payment or a relocation scholarship payment because the person is undertaking an approved scholarship course; and

(b) is not undertaking full-time study in an approved scholarship course at the end of 35 days after qualifying for the payment;

(c) the amount of the payment is a debt due to the Commonwealth; and

(d) the debt is taken to have arisen when the person received the payment.

"... do not apply if, in the Secretary's opinion, the person is not undertaking full-time study in an approved scholarship course because of exceptional circumstances beyond the person's control."[77]

1. YAL is regulated by Division 1 of Part 2.11 of the SS Act. Qualification for YAL depends first on the person's meeting the criteria in s 540 or the qualifications to that general rule set out in ss 540A, 540AA, 540AB and 540B. Those qualifications relate to a person who has made a claim for Disability Support Pension,[78] is a new apprentice,[79] has a medical condition affecting his or her capacity to work[80] or is a transferee from a social security pension.[81] There is no suggestion that Mr Alen Tomasovic is a person to whom any of those qualifications relates although, at all relevant times, he has been a person who is of youth allowance age.

1. That means that I must have regard to the general rule set out in s 540. It provides:

"Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:

(i) throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);

(ii) the person is a CDEP Scheme participant (see section 1188B) in respect of the period;

(b) throughout the period the person is of youth allowance age (see Subdivision D); and

(c) throughout the period the person satisfies any requirements relating to Youth Allowance Employment Pathway Plans that apply to the person under Subdivision E; and

(ii) is exempt from the residence requirement within the meaning of subsection 7(7).

Note 1: Subdivision G provides for prospective qualification for youth allowance.

Note 2: Division 2 sets out situations in which youth allowance is not payable even if the person qualifies for it."

1. A person is of "youth allowance age" if he or she has attained the minimum age for it and has not yet attained the maximum age.[82] Subject to qualifications set out in s 543A, the minimum age is 16 years of age unless the person is independent when the minimum age becomes 15 years.[83] The effect of those qualifications is that the person must either have completed the final year of secondary school or an equivalent level of education, be undertaking full-time study (but also meets the further qualifications in s 543A(2AA)), having entered, or agreed to enter, a Youth Allowance Employment Pathway Plan or be a new apprentice.[84]

1. Generally, the maximum age for receiving YAL is 22 years of age.[85] There are exceptions allowing the person to continue to receive YAL until 25. They occur if the person is undertaking full-time study or is a new apprentice.[86] Other exceptions allow a person to receive it beyond the age of 25 years. They are set out in s 543B(2):

"If the person is at least 25 years old, the person is taken not to have attained the maximum age for youth allowance if the person:

(a) was receiving youth allowance immediately before turning 25; and

(i) undertaking full-time study in respect of a course of education that the person had commenced before turning 25; or

(ii) a new apprentice and became a new apprentice before turning 25."

1. As Mr Alen Tomasevic is not a CDEP Scheme participant within the meaning of s 1188B,[87] he must satisfy the activity test as required by s 540(a)(i) of the general rule. The activity test is the subject of Subdivision B of Division 1 of Part 2.11. Sections 541(1)-541(2A) set out the circumstances in which a person will satisfy the activity test in respect of a period. Sections 541(2B), (3) and (4) set out the circumstances in which a person cannot be taken to satisfy the activity test.
2. Putting aside s 541(1)(a) for the moment, I note the ways in which a person may satisfy the activity test before turning to it. In general terms and omitting particular qualifications, other circumstances in which a person will be taken as satisfying the activity test in respect of a period arise if the person is actively seeking, and prepared to undertake, suitable paid work in Australia,[88] complies with the terms of a Youth Allowance Employment Pathway Plan that is in force in relation to him or her,[89] the person is participating in the National Green Jobs Corps program,[90] and if the person undertakes particular paid work that the Secretary requires him or her to undertake within the requirements of ss 541(2) and (2A). A person who, each fortnight, engages in at least 30 hours paid work considered suitable by the Secretary and who is either the principal carer of at least one child or who has a partial capacity to work, will also satisfy the activity test.[91]

"Subject to section 541A and subsection (3) of this section, a person satisfies the activity test in respect of a period if:

(a) the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study (see section 541B)..."

1. The circumstances in which a person will be "undertaking full-time study" are set out in s 541B. Section 541B(1) provides:

"For the purposes of this Act, a person is undertaking full-time study if:

(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

(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;

(iii) in a case to which subsection (1A)[[92]] 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."

1. The remaining provisions of s 541B go on to expand upon what is meant by terms such as "normal amount of full-time study" and an "approved course of education or study". They are not relevant in this case. What is relevant in this case is what is meant by the expression "at least three-quarters of the normal amount of full-time study in respect of the course for that period". What is the normal amount of full-time study in respect of a course is worked out under ss 541B(2) and (3). When, for the purposes of s 541B(1)(b), a person is undertaking full-time study in respect of a course, is the subject of s 541B(4). That section provides:

"For the purposes of paragraph (1)(b), a person is taken to be undertaking full-time study in respect of a course during the period (the relevant period):

(a) starting on the first day of classes in a study period; and

(b) ending on the Friday of the second week of classes in the study period;

If the person is enrolled in the course and undertakes study in respect of the course on at least one day in the relevant period."

1. Subdivision C of Part 2.11 of Chapter 2 sets out those situations in which a person is not required to satisfy the activity test in respect of a period. Section 542 sets them out and they are developed in the remaining provisions in the Subdivision. It provides:

"For the purposes of this Part, a person is not required to satisfy the activity test in respect of a period if, throughout the period:

(a) the person has a temporary incapacity exemption under section 542A; or

(b) the person has a pre-natal exemption or a post-natal exemption under section 542D; or

(c) the person has a remote area exemption under section 542E; or

(d) the person has a domestic violence or other special family circumstances exemption under section 542F; or

(da) the person has a disabled children or other family circumstances exemption under s 542FA; or

(db) the person has a new claimants exemption under section 542FB; or

(e) the person has a training camp exemption under section 542G; or

(f) the person has a special circumstances exemption under section 542H."

1. Of these, only those ss 542(d), (da) and (f) require further consideration for, on their face, the others have no bearing on Mr Alen Tomasevic's circumstances. When I turn to the sections expanding upon those particular circumstances, it becomes apparent that ss 542(d) and (da) too are not relevant. Section 542(d), for example, requires me to look to s 542F. Even if no domestic violence is alleged, and there is none alleged in this case, the exemption it provides requires the person to be the principal carer of one or more children. Mr Alen Tomasevic does not meet that requirement. The exemption provided in s 542FA, to which s 542(da) applies, is also inapplicable to Mr Alen Tomasevic's circumstances. Quite apart from its other requirements, it too requires that he be the principal carer of one or more children. While he has been a carer of his father, he is not a carer of children.

102. Only s 542H, referred to in s 542(f), may be relevant. It provides:

"(1) Subject to subsections (2) and (3), a person has a special circumstances exemption in respect of a period if:

(a) the Secretary is satisfied that special circumstances, beyond the person's control, exist; and

(b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to satisfy the activity test for that period.

(1A) In making a decision under subsection (1), the Secretary is to have regard to the guidelines.

(a) is to set guidelines for the exercise of the Secretary's discretion under subsection (1A); and

(2) The period referred to in subsection (1) is not to be more than 13 weeks.

(a) the Secretary makes more than one decision under subsection (1) or under subsection 731E(1); and

(b) the periods to which the decisions relate form a continuous period;

the continuous period is not to be more than 13 weeks, unless the Secretary decides otherwise, having regard to the continued existence, or likely continued existence, of the special circumstances on which the last preceding decision was based."

Circumstances in which YAL cancelled by operation of law

1. A social security payment includes Youth Allowance

1. Section 94 of the SSA Act sets out the circumstances in which a social security payment is cancelled by force of law when a person does not comply with a notice given under s 68(2) of that legislation. A "social security payment" includes a social security pension, a social security benefit, an allowance under the SS Act, any other kind of payment under Chapter 2 of that legislation and a pension, benefit or allowance under the Social Security Act 1947.[93] YAL meets paragraph (c) of the definition of a social security payment on the basis that it is an allowance under the SS Act as well as being a payment under Chapter 2 of that Act and so coming within paragraph (e) of the definition.

1. Only s 94(1) of the SSA Act is relevant. It provides:

(a) a person who is receiving a social security payment is given a notice under subsection 68(2); and

(b) the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

(c) the event or change of circumstances occurs; and

(d) the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

(e) because of the occurrence of the event or change of circumstances:

(i) the person ceases to be qualified for the social security payment; or

(ii) the social security payment ceases to be payable to the person;

the social security payment is cancelled, by force of this subsection, on the day on which the event or change of circumstances occurs."[94]

1. Section 68(2), to which s 94(1)(a) refers, provides:

"The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:

(i) a specified event or change of circumstances occurs; or

(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;

(b) give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;

(c) give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person."

Circumstances in which social security payment (including YAL) recipient incurs a debt

1. Section 1223(1) applies if a social security payment has been made and if "a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit."[95] If those two criteria have been met then, subject to the remaining provisions of s 1223:

"... the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment."[96]

LEGISLATIVE FRAMEWORK: can the debt be waived or written off?

1. The Secretary has power to write off a debt but the exercise of that power does not prevent anything being done at any time to recover a debt that has been written off.[97] The power is given by s 1236 of the SS Act, which provides:

"Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise."[98]

1. Section 1236(1A) sets the boundaries within which the power may be exercised:

"The Secretary may decide to write off a debt under subsection (1) if, and only if:

(b) the debtor has no incapacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) it is not cost effective for the Commonwealth to take action to recover the debt."

1. What is meant by the expression "irrecoverable at law", which is used in s 1236(1A)(a), is explained in s 1236(1B). In so far as it is relevant, it provides:

"For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

(a) the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or

(aa) the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or

(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

(d) the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt."

110. For the purposes of s 1236(1A)(b), s 1236(1C) explains, in so far as it is relevant, that:

(a) deductions from the debtor's social security payment; or

(c) setting off under section 84A of that Act;

the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship."

1. The Secretary may waive the Commonwealth's right to recover the whole or part of a debt only in the circumstances set out in the provisions set out in s 1237(1) of the SS Act. If the power is exercised, it takes effect either on the day specified in the waiver or, if none is specified, on the day on which the decision to waive is made.[99]

1. Of the provisions listed in s 1237(1), only s 1237A is relevant. Section 1237A(1) provides:

"Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to the proportion of the debt."

113. The Secretary's obligation only arises under s 1237A(1) if:

"(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

1. Section 1237AAD also provides for waiver when special circumstances make it desirable to do so. Again, the power is limited for s 1237AAD provides:

"The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or a false representation; or

(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c) it is more appropriate to waive than to write off the debt or part of the debt.

Note 1: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.

Note 2: This section has effect subject to section 1237AAE in relation to an assurance of support debt."[101]

I certify that the one hundred and fourteen preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: ...........[sgd]............................................

Dates of Hearing 14 August 2014, 1 and 6 October 2014

Program Litigation and Review Branch, Department of Human Services

[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T documents at 28.

[8] See also Confirmation of Enrolment and Tax Invoice dated 12 March 2013 from Swinburne and addressed to Mr Alen Tomasevic.

[9] See also Confirmation of Enrolment and Tax Invoice dated 28 March 2013 from Swinburne and addressed to Mr Alen Tomasevic and email from Swinburne to Mr Alen Tomasevic dated 28 March 2013.

[10] See Confirmation of Enrolment and Tax Invoice dated 24 June 2013 from Swinburne and addressed to Mr Alen Tomasevic and emails exchanged between Swinburne and Mr Alen Tomasevic dated 21-24 June 2013. See also email dated 12 September 2014 from Swinburne to Ms Bramley.

[11] See also Confirmation of Enrolment and Tax Invoice dated 24 June 2013 from Swinburne and addressed to Mr Alen Tomasevic and emails exchanged between Swinburne and Mr Alen Tomasevic dated 21-24 June 2013.

[17] Section 80 permits the Secretary to determine that a payment is to be cancelled or suspended if satisfied that it is being, or has been paid, to a person who is not, or was not qualified for that payment or to whom the payment is not, or was not, payable.

[34] T documents; T10 at 34-37 and see also 32-33

[37] http://guides.dss.gov.au/guide-social-security-law/3/2/11/40

[38] [1984] AATA 176; (1984) 1 AAR 362; 6 ALD 1; Toohey J, Presidential Member, Mr Wilkins and Dr Billings, Members

[39] [1984] AATA 176; (1984) 1 AAR 362; 6 ALD 1 at 364; 3

[40] [1984] AATA 176; (1984) 1 AAR 362; 6 ALD 1 at 366; 4

[41] Beadle v Director-General of Social Security [1984] AATA 176; (1985) 60 ALR 225; 7 ALD 670; Bowen CJ, Fisher and Lockhart JJ

[42] [1984] AATA 176; (1985) 7 ALD 670 ; 60 ALR 225 at 673-674; 228

[43] [2003] FCAFC 133; (2003) 75 ALD 134; Hill, Kiefel and Hely JJ

[44] [2003] FCAFC 133; (2003) 75 ALD 134 at [65]; 148

[45] [2007] FCA 25; (2007); 100 ALD 9; 44 AAR 436

[46] [2007] FCA 25; (2007) 100 ALD 9; 44 AAR 436 at [33]; 17; 445

[47] [2004] HCA 45; (2004) 223 CLR 513; 210 ALR 1; Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ; Kirby J dissenting

[48] [2004] HCA 45; (2004) 223 CLR 513; 210 ALR 1 at [13]; 523; 7

[52] SSA Act; s 43(1) A social security periodic payment is to be paid in arrears by instalments relating to such periods as the Secretary determines. YAL is a social security payment as it is an allowance: SS Act; s 23(1).

[56] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)

[58] [2005] AATA 172

[59] [2000] VSC 98 and cited in Gale at [84]-[85]

[60] [1988] FCA 400; (1998) 20 FCR 65; 16 ALD 611; 92 ALR 167; Wilcox J

[61] [1988] FCA 400; (1998) 20 FCR 65; 16 ALD 611; 92 ALR 167 at [56]; 81; 624; 182-183

[62] [2004] FCA 1548; (2004) 139 FCR 425

[63] [2004] FCA 1548; (2004)139 FCR 425 at [50]; 439

[64] [2004] FCA 1548; (2004)139 FCR 425 at [51]; 439

[65] [2004] FCA 1548; (2004)139 FCR 425 at [52]; 439-440

[66] [2004] FCA 1548; (2004)139 FCR 425 at [53]; 440

[67] SS Act; ss 1185B(1)(d)(ii), 1185R(1)(d)(ii) and 1223ABE(4)

[68] SS Act; ss 9A (7) (definition of "hardship amount" for the purposes of the meaning of the asset-test exempt income stream), 1206L(1)(b)(i) and 1206T(1)(b)(i)

[69] SS Act; ss 1061PL(7)(i) and 1067A(9)(i)

[70] SS Act; ss 17B(1) (definition of "sugarcane farm enterprise"), 92W(1)(b), 92Y(1)(d), 94F(1), 502C(2)(b), 502F(1)(a), 542(f), 542F(2)(b), 542H(1)(b), 602B(2)(b) and 603A(1)

[73] SS Act; s 592M and see also s 592N

[76] SS Act; Part 2.11B, Division 1, s 592F

[83] SS Act; s 543A(1). Section 1067A sets out various circumstances in which a person is regarded as "independent".

[87] A "CDEP Scheme participant" is a participant in a Community Development Employment Projects Scheme.

[88] SS Act; s 541(1)(b) and see further s 541D regarding paid work that is unsuitable

[92] Section 541B(1A) applies if a person cannot undertake the normal amount of full-time study in respect of a course in respect of a period because of, in summary, the usual requirements of the institution, a specific written direction to the student from the Academic Registrar or equivalent person or because that person makes a written recommendation that, for academic or vocational reasons, the person undertake at least two thirds of the study for that course provided it extends for a period longer than half an academic year. The section does not apply in Mr Alen Tomasevic's circumstances.

[94] Section 94(2) is not relevant in the circumstances of this case. It relates to a situation in which, because of the event or change of circumstances, the person's working credit balance or student income bank balance is reduced to nil in an instalment period. That instalment period must either be the same as, or later than, the instalment period in which the event or change of circumstances occurs. The consequence of the reduction of the balance to nil or of its having already having been reduced to nil must be that the social security payment ceases to be payable to the person. If all of these criteria are met, the social security payment is cancelled either on the day the balance was reduced to nil or on the first day on which the opening balance was nil.

[101] A debt relating to YAL is not an assurance of support debt.