Wecker v Secretary, Department of Education, Science and Training

REASONS FOR JUDGMENT 1 This is an appeal on questions of law from a decision of the Administrative Appeals Tribunal ('the AAT') constituted by Senior Member, Ms N Isenberg, of 22 March 2007 ([2007] AATA 1155). 2 There are essentially two issues to be considered. Firstly, a question arises as to the meaning of words used in one of the boxes in Column 1 of Schedule 2 to a Ministerial Determination No. 2002/1 ('the Ministerial Determination') made by the Minister for Education, Science and Training on 17 October 2002 in accordance with s 5D(1)(a) of the Student Assistance Act 1973 (Cth) ('the Student Assistance Act'). 3 The relevant words contained in Column 1 of Schedule 2 to the Ministerial Determination were expressed as follows: 'Undergraduate or postgraduate accredited higher education course which is at the level of: · associate degree; · associate diploma; · diploma; · advanced diploma; · Bachelor degree; · graduate degree; · graduate certificate; · graduate diploma; · NBCOTP funded course; · Master's qualifying course; or · a combined course which leads to two of these awards, · and is classified as such in the institution's handbook and is not: a secondary course specified in Schedule 1; or · a course at the level of a Masters or Doctoral degree unless otherwise specified in Schedule 2.' 4 The second issue is to consider whether the Court should, in the exercise of its powers under s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act') make a finding of fact to the effect that on 26 August 2004 the applicant attended the Braddon ACT office of Centrelink whereupon he informed Ms Jane Lewis, then a Centrelink employee, that he had withdrawn from his Bachelor of Laws degree course at the Australian National University and enrolled in a Master of Education degree course in Adult Education at the University of Technology, Sydney. 5 As it transpires the applicant completed approximately two-thirds of his LL.B. degree course at the Australian National University before withdrawing from same. In relation to his study for a M.Ed (Adult) degree at the University of Technology, Sydney the applicant has apparently completed all but one subject in that course. He says that he has not been permitted to continue with that course for alleged non-academic misconduct which disallowance is presently the subject of proceedings in the Supreme Court of New South Wales. 6 It is common ground that in the period 27 June 2004 - 22 July 2005 the applicant received $10,946.20 by way of Austudy from Centrelink. During that period of time he was engaged in studying at the University of Technology, Sydney in his Master of Education in Adult Education course. 7 On 9 March 2006 E C Prichard, a Customer Service Officer with Centrelink, determined that the applicant was not entitled to an Austudy student allowance as from 27 June 2004. The computer generated record of the relevant decision records: 'Customer not entitled to AUSTUDY STUDENT from 27 JUN 2004 (end of ANU degree level study). Masters level study is not approved for Austudy.' 8 On 9 March 2006 an 'Account payable' was issued by Centrelink to the applicant calling for payment of the amount of $10,946.20 on or before 7 April 2006. The 'Account payable' included under the heading 'Why this amount is payable' the following: 'To receive Austudy you were required to be enrolled at an educational institution in a Centrelink approved course. As you were studying at the University of Technology Sydney in a masters level course (which is not an approved course for Austudy) you were not entitled to payment from 27 JUN 2004 (end of your ANU study). As a result you have been overpaid $10,946.20. We are therefore required to recover this amount.' 9 The applicant proceeded to apply for a reconsideration of the Customer Service Officer's decision of 9 March 2006. On 15 March 2006 the Customer Service Officer confirmed the earlier decision. Reference was made to s 569B of the Social Security Act 1991 (Cth) ('the Social Security Act'), to s 5D of the Student Assistance Act and to the Ministerial Determination. The report of the Customer Service Officer on the application for reconsideration of the decision included: 'Enquiries were made (prior to the debt being raised) with the University of Technology Sydney which confirmed that the customer was studying at masters level, and not at a lesser level of graduate diploma. Therefore as the customer was studying at masters level he was not qualified to (sic) Austudy. …' 10 The applicant proceeded to apply for review of the Customer Service Officer's decision by an Authorised Review Officer on 21 March 2006. 11 The Authorised Review Officer, Ms Butler, decided on 30 March 2006 to affirm the decision of the Customer Services Officer. In her Decision Statement she said: 'There is no indication that the Master in Education you undertook was an integrated or combined bachelor/masters course as there is no exit point from the course which gives you a bachelor equivalent; Therefore I decided your study in spring semester 2004 and autumn semester 2005 was not approved study and you did not qualify for Austudy in this period; Consequently you have been overpaid from 27 Jun 2004 to 22 Jul 2005 the amount of $10.946.20 and this is a recoverable debt under section 1223(1); I considered whether the debt should be waived due to your understanding that you should still be eligible for Austudy at the time so I referred to section 1237AAD: … I took into account the appeal you made to be granted Austudy in 2002 in which you showed you had knowledge of the Social Security Act and that it was not payable for Masters degrees; You were sent various letters including one on 18 Dec 2003 which said: Your Austudy is based on you studying full time at AUST NATIONAL UNI - MAIN CAMPUs, Tertiary Group A Course with the course ending on the 26~2006. If your study load changes or if you cease study you should let us know within 14 days. I considered that as you were notified of the need to advise Centrelink of changes to your study and you did not do so, that you cannot be said to have not knowingly failed to comply with the notification requirement; For these reasons I affirmed the decision to recover this debt.' 12 By letter dated 30 March 2006 Ms Butler advised the applicant of her decision and provided him with a copy of the Decision Statement. 13 On 5 April 2006 the applicant applied to the Social Security Appeals Tribunal ('the SSAT') for review of the Authorised Review Officer's decision. 14 On 13 June 2006 the SSAT decided to affirm the decision and this decision was notified to the applicant on 23 June 2006. It was accompanied by reasons for decision occupying some 10 pages. 15 On 10 July 2006 the applicant proceeded to apply to the AAT for review of the SSAT's decision. In the box providing for 'REASONS FOR APPLICATION' the applicant recorded: 'Please find attached my 'REASONS WHY I BELIEVE THE SSAT DECISION IS WRONG'. ssat has: disregarded Minister's Determination 2002/1 (s5D SAA 1973). Both the SSAT's decision and a part of the Minister's Determination are inconsistent with the legislation. The SSAT's decision is inconsistent with s569(2)(b) of the SSA 1991. The SSAT has relied on policy which is inconsistent with the SSA 1991. The SSAT has referred to policy above legislation.' 16 The attached reasons appear to be recorded in a two page document followed by a nine page document. 17 The Tribunal Member in her REASONS FOR DECISION of 22 March 2007 came to the conclusion that the applicant's circumstances did not come within any of the provisions of Schedule 2 of the Ministerial Determination. Accordingly he was not entitled to Austudy after he ceased studying for the Bachelor of Laws degree on 26 June 2004 (at [32]). 18 At [34]-[47] the Tribunal Member proceeded to consider the following question: 'Are there are (sic) any grounds not to recover all or part of the debt?' 19 At [34]-[35] the Tribunal Member said: '34. The Act allows a debt to be written off or waived in limited circumstances. Writing off a debt is possible under section 1236(1) of the Act but none of the conditions set out in section 1236(1B) of the Act apply. 35. Pursuant to section 1237A of the Act, the proportion of a debt that is due solely to administrative error by the Commonwealth must be waived by the Secretary if the payments giving rise to that debt were received in good faith.' 20 In addressing the second issue the Tribunal Member had to consider whether or not, as required by s 68 of the Social Security Act, the applicant had informed the respondent of his 'change of circumstances'. The applicant contended that he had done so by attending at Centrelink's Braddon office on 26 August 2004 and so informing the Centrelink officer serving the counter. He supported his assertion in this regard by relying upon the printout of a Centrelink computer screen which contained the following 'Document text': 'Document text Summary CSO ENQ AUS Extra details RCO UPDATED. NO DEBT General Customer Service Officer actioned record on 26 AUG 2004 regarding General Enquiry for Austudy. Information was obtained via Counter Statement using Internal Channels. Document created by YGZ on 26 AUG 2004. Text LISTING REC FROM NSO [National Support Officer] RE MANUAL RATE ON RCO [Rate Component Override]. IS ENTITLED TO HIGHER BB RATE, BUT SYSTEM IS PAYING AUTO. DONT NEED RCO CODED. HAVE ENDED FROM DPT+1 [date paid to plus 1]' 21 The applicant also relied upon the reference to the 'Source' for the above entry as being 'Counter Statement' of 26 August 2004. 22 Whilst the applicant drew comfort from the words 'NO DEBT' as recorded on the abovementioned screen, the Tribunal Member was unable to accept that this entry provided support for the applicant's contention that he had on 26 August 2004 disclosed his change of circumstances to Centrelink. In particular the Tribunal Member referred at [41] to the words appearing against the heading 'Text' which, when explained, clearly related to an internal review as to whether or not there was any need to effect a change in the rate of Austudy which was being paid to the applicant. In this context the Tribunal Member was unable to accept the screen details as providing support for the applicant's contention. 23 The Tribunal Member at [36] drew attention to the fact that Mr Wecker had provided three inconsistent accounts in relation to his alleged disclosure of his changed circumstances. Her REASONS FOR DECISION stated: '36. Mr Wecker was recorded by the SSAT as being unable to recall if he had notified Centrelink of his change of course, although he thought he may have sent a letter after he re-enrolled at UTS. Mr Wecker told me, however, that he had phoned Centrelink to advise of his change in course. At the resumed hearing on 9 February 2007 he recalled instead that he had gone to ANU to collect a cheque payable as a result of the sale of his textbooks and decided to go the (sic) Centrelink at Braddon (sic) while he was there to advise of his change of course.' 24 In these circumstances the Tribunal Member rejected the applicant's evidence that he had disclosed his change of circumstances to Centrelink on 26 August 2004. At [45] the Tribunal Member said: '… I do not have confidence in Mr Wecker's account of notifying Centrelink given that his evidence has varied on at least three occasions. …' 25 On page 19 of his Notice of Appeal to this Court, filed 18 April 2007, the applicant sought a finding: '… that on the 26/08/04 Centrelink Braddon ACT, updated his AUSTUDY record without a debt being claimed. The Applicant's contention is upheld by "direct (original) evidence" constituted by Centrelink computer records (see copy attached).' (footnote omitted) Later at page 20 of the Notice of Appeal the applicant said: 'In the case of the Applicant records (see copy attached) reveal that the Applicant responded to a CSO inquiry as to AUSTUDY on the 26/08/2004 and that his AUSTUDY record was updated without a debt being claimed.' The updating of his Austudy record was said to consist of his disclosure of his change of circumstances, although this was not mentioned by him in either of the above passages. 26 Whilst s 44(7) of the AAT Act confers a limited power on the Court hearing an appeal on questions of law under s 44(1) to make findings of fact if, after considering a series of matters, it appears to the Court to be convenient to do so, the Court is precluded from making any findings of fact that are inconsistent with findings of fact made by the AAT, other than findings that were made by the AAT as the result of an error of law. 27 Plainly, the Tribunal Member did not commit any error of law in evaluating the applicant's credit on the issue as to whether or not the applicant had informed Centrelink of his changed circumstances on 26 August 2004. The Tribunal Member having rejected the applicant's evidence that he made a disclosure of his change of course to the Braddon office of Centrelink on 26 August 2004, the Court may not make a finding of fact inconsistent with the Tribunal Member's finding. 28 The applicant submitted that the respondent's right to recover any debt that may have arisen from the wrongful payment of Austudy to him was lost in respect of payments that were made after he notified Centrelink of his change of course. However, he accepts that in the absence of a finding that he did notify Centrelink of his change of course on 26 August 2004, and assuming that he was not entitled to Austudy, he has no basis for resisting the claim made by the respondent for re-payment of the amount of $10,946.20 claimed by Centrelink or any part thereof. 29 In the circumstances it is necessary to turn to the basis upon which the applicant asserts that, as a matter of law, he had an entitlement to an Austudy student allowance whilst studying for his Master of Education degree in Adult Education at the University of Technology, Sydney. 30 The relevant chain of statutory provisions which needs to be considered commences with s 568 of the Social Security Act. The critical provision for present circumstances is s 568(a). That provision then directs one to s 569. Section 569(2) of the Social Security Act relevantly provided: '569(2) A person cannot be taken to satisfy the activity test if the person: … (b) has completed a course for: (i) a degree of Master or Doctor at an educational institution; or …' 31 The applicant submits that this provision suggests that a student will relevantly qualify for Austudy until such time as they have completed a Masters degree course. However, this submission overlooks the requirements of s 569(1) which were expressed as follows: '569(1) Subject to subsection (2), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is undertaking qualifying study (see section 569A).' 32 It is clear that an entitlement to Austudy depends upon a person satisfying the 'activity test' and that in turn requires a person to be 'undertaking qualifying study' within the meaning of s 569A of the Act. 33 For present purposes, regard needs to be had to s 569A(b) in particular to ascertain whether or not the applicant was 'undertaking qualifying study' within the meaning of s 569A. Section 569A(b) provided: '569A For the purposes of this Part, a person is undertaking qualifying study if: … (b) the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); … …' 34 The next step in the chain is to turn to s 569B to ascertain whether or not the applicant was enrolled in 'an approved course of education or study'. Section 569B provided: '569B For the purposes of paragraph 569A(b), a course is an approved course of education or study if it is a course that the Employment Minister has determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.' 35 The expression 'that the Employment Minister has' was removed from the Social Security Act by the Family and Community Services Legislation Amendment Act 2003 which came into force on 15 April 2003. 'Employment Minister' was relevantly defined in s 23 of the Social Security Act, prior to its removal, to mean the Minister administering the Department of Employment, Education and Training. Note also s 19A(1) of the Acts Interpretation Act 1901 (Cth). 36 Section 5D of the Student Assistance Act empowered the Minister to determine in writing that a course of study or instruction was a 'tertiary course'. Section 5D contemplated that determinations made by the Minister could be amended or repealed (see s 5D(2)). 37 For the applicant to qualify for an Austudy payment it was necessary for him to be enrolled in a course of education which answered the description of being a tertiary course within the relevant Ministerial Determination. 38 Relevantly, paragraph 7 of the Ministerial Determination provided: 'Tertiary Courses 7. (1) For the purposes of the Act, a course specified in Column 1 of Schedule 2 and conducted by an education institution specified for that course in Column 2 of Schedule 2 is a tertiary course. (2) For the purposes of the Act, no course accredited at Masters or Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2.' 39 The relevant part of Column 1 of Schedule 2 for the purposes of this case has been set out above (see [3]). 40 It is clear that a Master of Education degree in Adult Education could not be classified as a 'tertiary course' unless it was expressly specified as such in Schedule 2. 41 Apart from relying upon the wording of that part of Column 1 of Schedule 2 set out above, the applicant also urges that regard should be had to the last box within Column 1 of Schedule 2 which provided as follows: 'Integrated undergraduate/postgraduate course leading to a Masters degree, excluding that year or years of the integrated course in excess of the normal full-time duration of the related undergraduate accredited higher education course or related undergraduate and postgraduate accredited higher education courses that are not at the Masters level. (That is, excluding the year or years relating to study at the Masters level).' 42 It is clear from paragraph 7(2) of the Ministerial Determination and the words in parentheses at the conclusion of the item concerning integrated undergraduate/postgraduate courses that there is a general policy to exclude persons enrolled in Masters degree courses from an entitlement to an Austudy student allowance. 43 In my opinion the last box in Column 1 of Schedule 2 dealing with integrated courses has no present application beyond supporting that policy indication. It is clear that the degree course in which the applicant was enrolled was not one which combined an undergraduate course, or elements of it, with a postgraduate course or elements of it. 44 On a cursory examination of the relevant part of Column 1 of Schedule 2 to the Ministerial Determination (at [3] above), one might have thought that the last bullet point permitted an Austudy allowance to be paid to a student enrolled in a course at a Masters level, there being no relevant exclusion covered by the words 'unless otherwise specified in Schedule 2'. However, as the applicant rightly concedes, the last bullet point is in fact governed by the word 'not' in the penultimate bullet point. Had the material appearing against the last three bullet points in the relevant box of Column 1 of Schedule 2 been recorded as was plainly intended, with only one bullet point preceding the words 'a combined course' then the relevant item would have been expressed as follows: '● a combined course which leads to two of these awards, and is classified as such in the institution's handbook and is not: a secondary course specified in Schedule 1, or a course at the level of a Masters or Doctoral degree unless otherwise specified in Schedule 2' 45 It is clear that the applicant was not enrolled in such a combined course the completion of which would entitle him to two awards. Furthermore, even if it had been a 'combined course' it would have been excluded from the relevant definition of 'tertiary course' by virtue of the second exclusion appearing after the word 'not'. 46 In the foregoing circumstances the applicant has pitched his case as one covered by the expression: '… postgraduate … course which is at the level of: … · graduate degree' 47 In my opinion the expression 'graduate degree', properly construed, does not include degree courses at the Masters level. 48 One only has to look at the definition of 'Masters qualifying course' to realise that the list of courses in Column 1 of Schedule 2 stops short of Masters degree courses. In paragraph 4 of the Ministerial Determination 'Masters qualifying course' was defined to mean: 'a bridging course which gives participants the qualifications necessary for entry into a Masters degree course, but does not include any course which forms part of a Masters degree course' 49 If, say, a student attained a Bachelors degree in Engineering in one discipline and wanted to proceed to undertake a Masters degree in Engineering in another discipline, it may well be that there would be a requirement for a bridging course to be undertaken to allow the student to move from one particular engineering discipline to another. Were that to be the case, then an Austudy student allowance could be paid through to the conclusion of the bridging course, but not beyond that point. 50 Similarly, in the case of graduate certificates and graduate diplomas, these plainly fall short of Masters level courses. No doubt they were intended to cover study in a specialised discipline, such as intensive care nursing, after a Bachelors degree in Nursing had been completed, which might result in the award of an appropriate certificate. 51 It seems to me that a course at the level of 'graduate degree' for which Column 1 of Schedule 2 provided was a degree such as a Bachelors degree in Medicine and Surgery which may only be embarked upon by a student who already had a Bachelors degree in (say) Medical Science. 52 A postgraduate course at the level of 'graduate degree' does not, as I see it, include a course at the level of a Masters degree, in the context in which it appears in paragraph 7 of the Ministerial Determination and Column 1 of Schedule 2 taken as a whole. 53 Apart from finding, contrary to the applicant's submission, that the course in which he was enrolled was not a postgraduate course at the level of 'graduate degree' and thus a relevant tertiary course, it should be noted that when the matter was before the AAT no like submission to that put to the Court, was advanced. The case before the AAT appears to have been that the applicant's course at the University of Technology, Sydney, was a tertiary course because it answered the description of being a 'Master's qualifying course' or 'a course at the level of a Masters … degree unless specified in Schedule 2' or an 'Integrated undergraduate/postgraduate course leading to a Masters degree' which was not the subject of a relevant exclusion in relation to studies at the Masters level. 54 In the applicant's Notice of Appeal he identified a series of questions of law in respect of which he brought his appeal against the decision of the Tribunal Member. These were identified as questions 1, 2(a), (b) and (c) and (3)(a) and (b). 55 Given the manner in which the appeal proceeded and the two primary issues which the applicant tendered for the Court's consideration, I have refrained from specifically dealing with each of the separately identified questions referred to in the Notice of Appeal. Suffice it to say that no error of law has been demonstrated in any part of the Tribunal Member's decision. Accordingly, the decision of the Tribunal should be affirmed and the applicant should be ordered to pay the respondent's costs of the appeal. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.