Wecker v Secretary, Department of Education Science and Training

Factual and procedural history 4 Paul Wecker was born in Austria on 29 December 1952. Between 1997 and 2000 he undertook and completed studies for a Bachelor of Arts degree at Sydney University. Following the completion of that degree he enrolled, in 2001, in a course for a Graduate Diploma of Education at the University of Western Sydney. He withdrew from that course in the same year. 5 In 2003 Mr Wecker enrolled in the graduate entry course for the degree of Bachelor of Laws at ANU. On 20 October of that year he lodged a Claim for Austudy benefit with Centrelink. The claim was initially rejected on 21 October 2003 on the basis that he had "… no allowable time left" to complete his second degree. Mr Wecker successfully sought internal review of that decision. He was paid Austudy from 13 December 2003. 6 At the end of his first semester in the LLB course Mr Wecker withdrew from it and enrolled in a course leading to the degree of Master of Education in Adult Education at the UTS. According to Centrelink he did not inform them of his change of course until June 2005. 7 On 9 March 2006 Centrelink issued an Account payable to Mr Wecker for $10,946.20. The reason for the account was expressed on it thus: 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. 8 Mr Wecker sought reconsideration of the decision to raise the alleged overpayment. On 15 March 2006 a Customer Service Officer for Centrelink wrote to him advising that the decision would not be changed. The principal reason for that decision was expressed succinctly: 569A (b) of the Social Security Act 1991 states that to be qualified to Austudy a person must be undertaking full time study in an approved course. 569B of the SAA1991 states that a course is an approved course of study if it is determined under 5D of the Student Assistance Act 1973. Under 5D of SAA1973 the Minister has made Determination No 2002/01 listing approved secondary and tertiary courses. In this determination it states that a course is an approved tertiary course at Masters level unless otherwise stated; but it then goes on to state that only the part of a Masters course which is at a level of study less than Masters can be approved. The University of Technology Sydney have advised that your study was at masters level, and not at a level leading to a lesser qualification. Mr Wecker sought review of the decision by an Authorised Review Officer (ARO) who informed him on 30 March 2006 that she had decided the primary decision was correct. 9 Mr Wecker then sought review of the ARO decision by the SSAT. The SSAT heard his application on 13 June 2006 and decided to affirm the decision on the same day. Its notification and reasons were sent to him on 23 June 2006. 10 Mr Wecker next applied to the AAT for review of the SSAT decision. On 22 March 2007 the AAT affirmed the decision under review. On 18 April 2007 Mr Wecker appealed to a single judge of this Court against the decision of the AAT. On 2 July 2007 Graham J dismissed Mr Wecker's appeal and "affirmed" the decision of the AAT: Wecker v Department of Education Science and Training [2007] FCA 985. His Honour also ordered that Mr Wecker pay the costs of the Secretary, Department of Education, Science and Training, who was the named respondent to the appeal. On 23 July 2007 Mr Wecker filed a notice of appeal against the judgment of Graham J. Before turning to the reasons for decision of the AAT and of Graham J it is helpful to refer to the relevant parts of the statutory framework.

Statutory framework 11 The qualifying provision of the Act in relation to Austudy payment is s 568 which provides, subject to the Subdivision in which it appears, that a person is qualified for an Austudy payment in respect of a period if, throughout that period, the person satisfies the "activity test". The person must also be of Austudy age and an Australian resident. The "activity test" is defined in s 569(1) thus: (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). Subsection (2) is not material for present purposes save for s 569(2)(b)(i). This provides, in effect, that a person cannot be taken to satisfy the activity test if that person has completed a course for the degree of Doctor at an educational institution. 12 Section 569A sets out the circumstances in which a person can be said to be "undertaking qualifying study". It requires that the person be enrolled in a course of education at an educational institution and that, inter alia: (b) the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); Section 569B provides that a course is an approved course of education or study: … if it is a course 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. 13 A determination under s 5D of the Student Assistance Act 1973 (Cth) (the Assistance Act) is a determination made by the relevant Minister. In this case the applicable determination was made on 17 October 2002. It was Determination No 2002/1 entitled "Determination of Educational Institutions and Courses under Subsections 3(1) and 5D(1) of the Student Assistance Act 1973". The Determination contained two schedules, Schedule 1 entitled "Secondary Courses" and Schedule 2 entitled "Tertiary Courses". A course specified in Column 1 of Schedule 2 and conducted by an educational institution specified for that purpose in Column 2 of Schedule 2 was a "tertiary course" (Determination clause 7(1)). By clause 7(2) of the Determination: 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. The Act there referred to was the Assistance Act. 14 Schedule 2 of the Determination contained the following entries: Column 1 - Course Column 2 - Education institution … Higher education institution Undergraduate or postgraduate accredited higher education course which is at the level of: Registered training organisation . 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. … Higher education institution 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).

Reasons for decision of the AAT 15 The AAT identified as the issues before it the following: . Whether Mr Wecker qualified for Austudy payment during the period 27 June 2004 to 22 July 2005 and if not: . Whether Mr Wecker owes a debt to the Commonwealth in the amount of $10,946.20 for the period 27 June 2004 to 22 July 2005 and if so: . Whether there are any grounds not to recover all or part of the debt from Mr Wecker. The AAT then set out the relevant provisions of the legislation and the Determination already referred to in these reasons. 16 Mr Wecker had submitted to the AAT that the UTS Masters course was a "Masters qualifying course" because it led to a Masters Degree. However the AAT accepted the Centrelink submission that the UTS Masters course did not meet the definition of "Masters qualifying course" contained in s 4 of the Determination which reads as follows: … 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; 17 The AAT accepted that there was a drafting error in the entry in Schedule 2 of the Determination relating to the Masters qualifying course. That entry should have been set out in the same way as its equivalent in the 1999 Determination, which read as follows: Undergraduate or postgraduate accredited higher education course that is an associate degree, associate diploma, diploma, advanced diploma, Bachelor degree, graduate degree, graduate certificate, graduate diploma, a NBCOTP funded course, a 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 Masters or Doctoral degree unless otherwise specified in Schedule 2. [emphasis in original] 18 While agreeing with Mr Wecker that the 1999 Determination had been superseded by that made in 2002, the AAT accepted that there was a drafting oversight in the more recent version. The Explanatory Statement accompanying the Determination confirmed its intention as to coverage. Even if that comparison were not available, the printed version of the 2002 Determination was nonsensical. That lack of precision could not be said to bestow an Austudy entitlement on all Masters students. The AAT concluded that Schedule 2 did not expressly include the type of Masters degree undertaken by Mr Wecker. 19 The AAT also rejected Mr Wecker's contention that the UTS Masters degree which he undertook was "an integrated course" because of the requirement for pre-requisite subjects. The AAT held that the term "integrated" did not have the meaning which Mr Wecker sought to attribute to it. It agreed with Centrelink's submission that the legislation intended the Masters component of an integrated course to be excluded from the definition of a tertiary course so that Austudy benefit would not be payable for that portion. 20 Mr Wecker also mounted an argument that because s 569(2)(b) of the Act excluded from Austudy benefit persons who already had a Masters degree, the benefit remained available to those who did not have a Masters degree. This submission was rejected. 21 Having come to the view that Mr Wecker was not entitled to Austudy payment during the relevant period, the AAT found that the amount of Austudy paid to him during that time was a debt to the Commonwealth pursuant to s 1223(1) of the Act. 22 Mr Wecker then contended before the AAT that he had actually informed Centrelink of his change in course. He contended, because of Centrelink's failure to act on his advice in 2004, there had been administrative error by the Commonwealth which would justify waiver by the Secretary of the debt (s 1237A of the Act). 23 Mr Wecker told the AAT that he had telephoned Centrelink to advise his change in course. However, at the resumed hearing on 9 February 2007 he said that he had gone to ANU to collect a cheque payable as the result of the sale of his textbooks and decided to go to Centrelink at Braddon while he was there to advise of his change of course. He relied, inter alia, upon a copy of a Centrelink computer file note showing an entry on 26 August 2004 which said, among other things, "no debt". The AAT received evidence about the significance of this note in its context from Sally-Ann Martin of Centrelink, the current Manager of Student Services at Braddon Centrelink. The author of the entry was her predecessor Ms Jane Lewis. She offered her opinion to the AAT that there was no likelihood that the relevant entry was generated in respect of information supplied by Mr Wecker about his change of course. The AAT accepted her explanation. It also said (at [45]): I do not have confidence in Mr Wecker's account of notifying Centrelink given that his evidence has varied on at least three occasions. His position from the outset of the hearing was that his entitlement to Austudy was consistent from the beginning of his studies, in which case there was no need to contact Centrelink. In any event he should have notified Centrelink within 14 days of the change of course which would have been well before the date upon which he said he had notified them, namely 26 August 2004. The AAT found no administrative error on the part of Centrelink. 24 The AAT then turned to the question whether there were special circumstances other than financial hardship alone which would justify waiver of the debt. However the AAT did not find Mr Wecker's circumstances to be unusual, uncommon or exceptional such as to justify making an exception to the general principle of raising and recovering debt as set out in the Act.

Reasons for judgment of the primary judge 25 The learned primary judge identified two issues for consideration. The first was the interpretation of the Determination. The second issue was the consideration by the AAT of whether or not Mr Wecker had informed Centrelink of his "change of circumstances" as required by s 68 of the Act. 26 On the first issue his Honour found adversely to Mr Wecker on the basis of the construction adopted by the AAT. On the second question he found that the AAT member did not commit any error of law in evaluating Mr Wecker's credit on the issue whether or not he had informed Centrelink of his changed circumstances on 26 August 2004.

The Issues 27 Mr Wecker filed an Amended Notice of Appeal on 14 November 2007. The grounds of appeal set out in the amended notice were not expressed with clarity but appear to give rise to the following issues: 1. Whether Mr Wecker was enrolled in an "approved course of education or study" within the meaning of s 569B. This reduced to the question whether the course in which he was enrolled at UTS fell within the tertiary courses specified in Schedule 2 of the Determination (grounds 1-2). 2. Whether, if the Ministerial Determination did not cover Masters or Doctoral courses, it was ultra vires s 569(2)(b)(i) of the Act (ground 2). 3. Whether the primary judge erred in accepting the AAT's finding, based on the witness statement of Centrelink officer Sally-Ann Martin, that Centrelink computer records did not evidence notification of a "change of circumstances" by Mr Wecker as he had claimed (ground 3). 4. Whether the primary judge erred in finding that the AAT had not erred in law in making the assessment it did of Mr Wecker's credit (ground 4). 5. Whether the Court should have made findings of fact in favour of Mr Wecker supporting a conclusion that he owed no money to the Commonwealth or that his debt should be waived.

Issue 1 - whether Mr Wecker's course was an approved course of education or study 28 The legislative scheme reflected in ss 568-569B of the Act indicates that the Act adopts, for the purposes of defining the entitlement to Austudy, a definition of "approved course of education or study" incorporating by reference secondary and tertiary courses determined by the minister under the provisions of the Assistance Act. No relevant inconsistency arises between the two statutes. One simply picks up, as approved courses, those which are from time to time set out in ministerial determinations under the other. The question, in this case, was whether or not Mr Wecker was enrolled in such a course. 29 It is not in dispute that Mr Wecker was enrolled in a course with a higher education institution as defined in the determination: … being an institution that is established under Commonwealth or State or Territory government legislation as a higher education institution or is registered by the relevant State or Territory higher education recognition authority; 30 Courses accredited at Masters or Doctoral level did not count as tertiary courses unless expressly specified in Schedule 2 (clause 7(2)). Mr Wecker had to bring himself within Schedule 2 to succeed. 31 Mr Wecker was not enrolled in a Masters qualifying course. That was defined in clause 4 of the Determination as: … 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; There was no factual basis for the contention that Mr Wecker was enrolled in a bridging course. He was enrolled in a course for a Masters degree. Nor was there any factual basis for any contention that he was enrolled in a combined course. 32 There was, as noted earlier, a drafting error in Schedule 2 relating to the placement of dot points. The Schedule was intended to exclude courses at the level of Master or Doctoral degrees unless otherwise specified in the Schedule. 33 There was no factual basis for the contention that Mr Wecker was enrolled in an integrated undergraduate/postgraduate course leading to a Masters degree. The only evidence was that he was enrolled in a Masters degree. A requirement for prerequisite units to have been passed at an undergraduate level does not establish an integrated course. In any event the year or years of study at Masters level were expressly excluded by the Determination so far as it related to integrated courses.

Issue 2 - whether the determination was ultra vires s 569(2)(b)(i) 34 Section 569(2)(b)(i) provides, in effect, that a person cannot be taken to satisfy the activity test if that person has completed a course for a degree of Doctor at an educational institution. It is self-evident that there is no inconsistency between this provision and the ministerial determination. Section 569(2)(b)(i) defines a disqualification. The courses of educational study listed in the Determination define, by their incorporation into the activity test, conditions for the satisfaction of that test. There is no merit in the second ground of appeal.

Issue 3 - whether the primary judge erred in relation to the evidence of Centrelink officers concerning notification of change of circumstances. 35 Mr Wecker, in his written submissions, contended that the primary judge "erred in law when he accepted the 'Witness Statement' of Centrelink officer, Sally-Anne Martin as definitive and conclusive evidence that the Centrelink computer records produced by the Appellant did not amount to evidence of a 'notification' of a change in circumstance". He argued that the Martin "Witness Statement" did not refer to a different set of computer records but rather disputed the meaning of his evidence, namely the Centrelink computer records. Mr Wecker then went on to contend that the witness statement was "evasive". It was "Uncertain" to the extent that it was "Void for Uncertainty". 36 The ground of appeal is misconceived as the primary judge did not accept a witness statement from Ms Martin. The relevant evidence was evidence before the AAT. 37 Mr Wecker's complaint about the acceptance of that evidence raises no question of law. Rather he contends against inferences drawn by the AAT from evidence that was put before it. The AAT, in any event, made findings adverse to the reliability of his evidence on the matter because of variances in his accounts of his notification to Centrelink of the course change. The primary judge correctly held that the AAT member did not commit any error of law in so doing. There is no merit in this ground of appeal.

Issue 4 - whether the primary judge erred in relation to the AAT's assessment of Mr Wecker's credit 38 For the reasons expressed in relation to the preceding ground, there was no error on the part of the primary judge in this respect. Issue 5 - whether the Court should have made findings of fact in favour of Mr Wecker 39 The question of the Court making findings of fact in favour of Mr Wecker would only have arisen had it found an error of law on the part of the AAT. No such error existed and this ground of appeal therefore falls away.

Conclusion 40 There is no merit in any of Mr Wecker's grounds of appeal. The appeal should be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate: Dated: 19 June 2008 IN THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: SECRETARY, DEPARTMENT OF EDUCATION SCIENCE AND TRAINING

WEINBERG J 41 I have had the advantage of reading in draft the reasons for judgment prepared by both French J and Greenwood J. I agree with those reasons, and with the orders proposed. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate: Dated: 19 June 2008 IN THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: SECRETARY, DEPARTMENT OF EDUCATION SCIENCE AND TRAINING

Introduction 42 Mr Paul Wecker is a self‑represented appellant. He appeals from orders of Graham J (Wecker v Secretary, Department of Education Science and Training [2007] FCA 985) dismissing his application under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act') on questions of law arising out of a decision of the Administrative Appeals Tribunal ('the Tribunal') of 22 March 2007. The Tribunal affirmed a decision of the Social Security Appeals Tribunal ('SSAT') which affirmed a decision of Centrelink on behalf of the respondent to recover an amount of $10,946.20 paid to Mr Wecker in the period 27 June 2004 to 22 July 2005. The debt resulted from the payment to Mr Wecker of a social security benefit described as an austudy payment, pursuant to the provisions of the Social Security Act 1991 (Cth) ('the Act'). 43 The Student Assistance Act 1973 (Cth) ('the Assistance Act') formerly provided for the payment by the relevant Commonwealth department of austudy payments as part of an austudy scheme of student assistance benefits established by that Act. The Assistance Act was amended in 1998 with effect from 1 July 1998 with the result that austudy payments were brought within the scope of the Act as a social security benefit. A claimant demonstrates an entitlement to an austudy payment under the Act by satisfying the Secretary of the respondent that the claimant is, among other things, 'undertaking qualifying study' in the relevant period and is thus 'qualified' for austudy payments under Part 2.11A of Ch 2 of the Act. 44 Put simply, the respondent contended before the Tribunal that the appellant did not qualify under the Act in the relevant period for austudy payments while enrolled in and undertaking a tertiary course of study for the degree of Master of Education (Adult Education) at the University of Technology, Sydney ('UTS'); the appellant was not entitled to obtain the benefit of the payments; and, by reason of s 1223(1) of the Act, each payment to Mr Wecker became a debt due to the Commonwealth from the moment Mr Wecker received each payment. 45 The appellant contended before the Tribunal firstly, that as a matter of construction of the relevant provisions of the Act he did qualify for austudy payments as he satisfied the activity test under the Act. Secondly, in the event that upon a proper construction of the provisions he did not so qualify, the Tribunal standing in the place of the Secretary, ought to exercise a discretion to 'write off' the debt having regard to ss 1236(1) and 1236(1A) of the Act. Alternatively, Mr Wecker contended that the Secretary by operation of s 1237A of the Act 'must waive' the right to recover the debt as the appellant had received the payments 'solely' as a result of an 'administrative error' on the part of the respondent and the payments were received by him 'in good faith'. 46 The administrative error was said to arise in this way. Notwithstanding that on 26 August 2004, Mr Wecker attended the Braddon office of Centrelink in the Australian Capital Territory and advised a Centrelink officer that he had elected to change his course of study by discontinuing enrolment in a Bachelor of Laws degree at the Australian National University ('ANU') and taking up a Master of Education (Adult Education) course of study at UTS, Centrelink continued to pay austudy payments to him and recorded in the relevant computer records that 'no debt' arose. Mr Wecker contended that he received austudy payments throughout the period in good faith believing he was entitled to continuing austudy benefits while undertaking the new course of study at UTS. 47 On the question of law going to the construction of the relevant provisions of the Act, the primary judge found no error on the part of the Tribunal as in his Honour's view, Mr Wecker did not qualify for austudy payments since he did not satisfy the activity test as he was not undertaking qualifying study as those terms are understood for the purposes of the Act, throughout the period. Further, the primary judge found no error of law on the part of the Tribunal in the treatment of the evidence concerning the question of fact of whether Mr Wecker notified Centrelink of his change of course and no error of law in the Tribunal concluding that no grounds had been made out by Mr Wecker to enliven a basis upon which the debt might be written off or waived. The primary judge noted Mr Wecker's acceptance of the proposition that in the absence of a finding that he did notify Centrelink of his change of course on 26 August 2004, no basis arose for resisting the respondent's claim for recovery of the payments, assuming Mr Wecker did not qualify for austudy payments. 48 The appellant by an amended notice of appeal filed on 14 November 2007 raises five grounds of appeal and by his written submissions filed on 4 February 2008 he raises a sixth ground although the content of the sixth ground was not identified before the primary judge as an error of law on the part of the Tribunal. The first two grounds of appeal go to Mr Wecker's contended construction of the relevant provisions of the Act. The appellant says the 'primary point' of construction upon which he stands is that since he does not hold a degree of Master, s 569(2)(b)(i) of the Act contains an 'implied guarantee' of eligibility for austudy payments. Thus both the Tribunal and the primary judge erred in the construction of s 569 and failed to construe related provisions of the Act and a Determination of the Commonwealth Minister for Education, Science and Training made under the provisions of the Assistance Act in a way which would give purposive effect to the contended implied guarantee. 49 The third and fourth grounds go to contended errors on the part of the Tribunal in the treatment of the evidence concerning Mr Wecker's contended notification to Centrelink of his change of course. Mr Wecker contends that the error on the part of the Tribunal was a failure to recognise that a statement by Ms Martin put in evidence by the respondent was 'void for uncertainty'. However, the real contention, properly put, is that it was not open to the Tribunal to reach a finding of fact that it could not be satisfied Mr Wecker notified Centrelink of a change of course, in reliance upon the conjunction of apparent inconsistencies in evidence given by Mr Wecker of the circumstances in which he notified Centrelink and inferences drawn from Ms Martin's statement. Ms Martin, a Centrelink manager of student services for the Braddon area, sought to explain and answer, as a matter of informed speculation or reconstruction, the meaning and content of particular computer entries (made by a Centrelink officer other than Ms Martin) said by Mr Wecker to corroborate his oral evidence of his attendance at the Braddon office of Centrelink on 26 August 2004 expressly for the purposes of notifying Centrelink of his change of circumstances. 50 Further, Ms Martin's statement in part relied upon by the Tribunal in reaching its finding of fact, proceeds upon the supposition or assumption that had Mr Wecker attended the Braddon office of Centrelink and notified Centrelink of a change of course, that information would have been recorded as a computer entry in Mr Wecker's electronic file and the absence (as explained by Ms Martin) of such an entry is reliable evidence upon which a conclusion might be reached in a logically probative way that Mr Wecker did not attend the Braddon office and so advise Centrelink. 51 The appellant further says the Tribunal erred by treating the statement of Ms Martin as 'conclusive' evidence dispositive of the factual question of notification notwithstanding that the statement, it is said, is qualified; Ms Martin's explanation of the computer entries is not firsthand as she is not the author of the entries; the entries corroborate the appellant's direct oral evidence of notification; and, putting the appellant's contention in different terms but nevertheless consistent with the point the appellant seeks to advance, the statement did not support inferences sought to be drawn from it as a foundation for the finding of fact. 52 The appellant further contends that the Tribunal denied the appellant procedural fairness by reaching a finding of fact in circumstances of ostensible or apprehended bias (and, in the course of oral submissions the appellant also asserted actual bias on the part of the Tribunal). The bias was said to be manifest in the treatment of apparent inconsistencies in the appellant's evidence concerning his recollection of his method of notifying Centrelink of a change of course. The appellant contended that the primary judge's failure to make a finding of fact under s 44(7) of the AAT Act in terms of the appellant's contended notification on 26 August 2004, was also the expression of apprehended bias. 53 These contentions raise a number of questions: whether the Tribunal reached a finding of fact on the issue of notification by relying on inferences not open on the evidence; whether there was evidence to support the finding; whether the contention is in truth simply a contention of want of logic on the part of the Tribunal in the analysis of the evidence on notification; and whether the appellant is inviting the Court to improperly transgress upon the fact‑finding role of the Tribunal. A further question is whether in purporting to discharge its statutory obligation of review both under the AAT Act and the Social Security (Administration) Act 1999 (Cth) ('the Administration Act') investing the Tribunal with review jurisdiction, the Tribunal had a duty itself to inquire into aspects of Ms Martin's statement or to adjourn the review hearing to enable Ms Martin to be brought before the Tribunal to be asked questions either by the Tribunal or the parties and, in particular, in order to give the appellant an opportunity to cross‑examine Ms Martin. 54 The fifth ground goes to the question of whether, having regard to the appellant's evidence of notification of his change of tertiary study and the contended error in the treatment of the evidence going to that matter by the Tribunal, the primary judge erred by failing to make a finding of fact pursuant to s 44(7) of the AAT Act that on 26 August 2004 the Braddon office of Centrelink updated the appellant's austudy record on the footing that no debt arose in the appellant by reason of the receipt of austudy payments. 55 The additional ground raises a contention that the respondent must make a demand and thus raise a debt due to the Commonwealth in respect of the relevant payments within a time limit of six weeks from the first payment that caused the debt to arise or alternatively within a period of six weeks from compliance by a recipient of a benefit with a 'notification obligation', whichever is the later. The appellant contends that since the debt was not raised within either period, it can not now be recovered. 56 Although the issue of whether the appellant notified Centrelink of a change in his course of study was a matter of factual controversy before the Tribunal, there was no controversy as to the following foundation facts.

The uncontested facts before the Tribunal 57 On 20 October 2003, the appellant lodged a claim for austudy payments on the basis that he was enrolled in and undertaking a course of study in a graduate entry course leading to a Bachelor of Laws degree, at ANU. Austudy payments were made to the appellant from 13 December 2003 onwards. On 26 June 2004, the appellant ceased enrolment in the Bachelor of Laws degree and enrolled in a Master of Education in Adult Education at UTS. The appellant commenced that course of study in August 2004. On 9 March 2006, Centrelink determined that as the appellant did not qualify for austudy payments concerning the course of study at UTS, the amount of the benefits paid from 27 June 2004 to 22 July 2005 gave rise to a debt due to the Commonwealth. On 9 March 2006, Centrelink issued an account payable to the appellant demanding payment by 7 April 2006.

The statutory framework and grounds 1 and 2 of the Appeal 58 An austudy payment is a social security benefit under the Act to which a person is entitled if qualified. Section 568 addresses a person's qualification for austudy payments. It provides: 568. Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period: (a) the person satisfies the activity test (see Subdivision B); and (b) the person is of austudy age (see Subdivision C); and (c) the person is an Australian resident. 59 Section 569 addresses the notion of an 'activity test'. Although s 569(2)(b)(i) was amended by the Social Security Legislation Amendment (2007 Budget Measures for Students) Act 2007 (No. 184 of 2007) effective from 28 September 2007, s 569 was, relevantly, throughout the period the appellant received the payments under challenge, in these terms: 569(1) General 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). 569(2) Persons who do not satisfy the activity test. A person cannot be taken to satisfy the activity test if the person: (a) is employed on a full‑time basis as an apprentice or trainee under an industrial instrument and has a training agreement (however described) with a training authority (by whatever name called) of a state or territory; or (b) has completed a course for: (i) a degree of Master or Doctor at an educational institution; or (ii) a qualification at a foreign institution that is, in the Secretary's opinion, of the same standing as a degree of Master or Doctor at an educational institution. 60 It can be seen immediately that the statutory mechanism involves a person satisfying the Secretary that he or she is undertaking qualifying study and the Secretary can not be so satisfied of that matter if the person has completed a course for a degree of Master or Doctor at an educational institution. Section 569(2)(b)(i) thus operates as an exclusionary rule upon the state of satisfaction of the Secretary as to whether the person is undertaking qualifying study. The appellant seeks to invert the operation of s 569(2)(b)(i) and construe it as an inclusionary rule on the footing that if a person is not excluded, such a person as a matter of necessary implication, must be included within the activity test and thus qualify for austudy payments under s 568 of the Act. This is the implied guarantee the appellant contends for as a matter of construction adopting a purposive approach. 61 Section 569(2) does not give rise to an implied inclusion within the activity test or an implied guarantee of entitlement to austudy payments upon the person demonstrating that his or her circumstances do not enliven the exclusion. If the exclusion is not enlivened because the applicant for austudy payments has not completed a course for a degree of Master or Doctor, the Secretary is not precluded by the Act from reaching a state of satisfaction that the applicant satisfies the activity test by undertaking qualifying study. 62 The 2007 amendment deleted the reference to a degree of Master thus limiting the exclusion in s 569(2)(b)(i) to a degree of Doctor and in the appellant's contention, correspondingly broadened the scope of the implied guarantee. However, s 569(2) both in its amended 2007 form and in its earlier terms referring to both categories of degree, simply prescribes a field of exclusion from the operation of s 569(1) and does not give rise to any grant of rights or entitlements, implied or otherwise, to austudy payments. 63 The question of whether a person is undertaking qualifying study for the purposes of s 569(1) is addressed by s 569A. It provides: 569A For the purposes of this Part, a person is undertaking qualifying study if: (a) the person: (i) is enrolled in a course of education at an educational institution; or (ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re‑enrol in the course when re‑enrolments in the course are next accepted; or (iii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and (b) the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and (c) the person is a full‑time student or a concessional study‑load study in respect of that course (see sections 569C and 569D); and (d) the person satisfies the progress rules (see sections 569G and 569H). 64 Section 569A(b) requires the person to be enrolled in an approved course of education or study which, by s 569B is, relevantly, a course determined to be a tertiary course under s 5D of the Assistance Act. The Minister for Education, Science and Training on 17 October 2002 made a Determination (published in the Commonwealth Government Gazette No. GN44, 6 November 2002) described as 'Determination of Education Institutions and Courses under Subsections 3(1) and 5D(1) of the Student Assistance Act 1973, Determination No. 2002/1'. 65 As to tertiary courses, the Determination by Schedule 2, Column 1, identified eight categories of courses as tertiary courses for the purposes of the Assistance Act and by Column 2 of Schedule 2, the corresponding educational institutions are nominated. Before the Tribunal, the appellant relied upon the fifth and eighth categories as descriptions of courses within which his tertiary course of study at UTS fell. The appellant accepted before the primary judge that his course of study at UTS did not fall within the fifth category recited in the Determination. Only Category 8 was pressed. 66 Category 8 is in these terms: Schedule 2 - Tertiary Courses Column 1 - Course Column 2 - Education Institution 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 under graduate accredited higher education course or related under graduate and post graduate 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). Higher education institution

67 The schedule is given meaning by clause 7 of the Determination, in these terms: 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. 68 The University of Technology, Sydney, is a higher education institution for the purposes of the Assistance Act. 69 The fundament of the appellant's contention is this. 70 On 7 August 2000, the appellant was admitted to the degree of Bachelor of Arts (English and History) by the University of Sydney. In that degree in the years 1997 and 1998, the appellant undertook a number of education subjects. He then enrolled in a tertiary course at UTS which in part relied upon and extended study in the discipline of education. Although the degree is a post‑graduate degree of Master of Education (Adult Education), the appellant contends that the course is properly understood as an 'integrated undergraduate/postgraduate degree course leading to a Masters degree' for the purposes of the Determination. That is said to be so because the Masters degree is an advanced course of postgraduate study dependent upon completion of the pre‑requisite subjects qualifying entry into the postgraduate course and the course 'leads to' a Masters degree. As a matter of construction, the appellant says the introductory words of Category 8 'stipulate' his course of study for the purposes of clause 7(2) of the Determination; the last sentence of Category 8 in parenthesis is inconsistent with the introductory words of Category 8; and, adopting a purposive approach to s 569(2)(b)(i) thus giving expression to the implied guarantee the appellant contends for, any construction of Category 8 that limits or excludes a course of study leading to a degree of Masters is inconsistent with the implied guarantee and thus ultra vires the Act. 71 The Tribunal concluded that on the facts before it Mr Wecker was not undertaking a combined or integrated undergraduate/postgraduate degree; no internal inconsistency arises between the first and last sentences of Category 8; and the intention of the legislation is to exclude from qualifying tertiary courses those years of a course relating to study at Masters level. The primary judge found no error of law on the part of the Tribunal in its approach to the construction of clause 7(2) and Schedule 2 of the Determination. The primary judge noted the finding of fact by the Tribunal that the appellant was not undertaking an integrated undergraduate/postgraduate course of study and also expressed a view about the correctness of that view. The primary judge also referred to Category 5 of Schedule 2 of the Determination which contains a series of bullet points identifying particular tertiary courses. The last three bullet points are in these terms: Undergraduate or postgraduate accredited higher education course which is at the level of: … • a combined course which leads to two of these awards [that is, by reference to a preceding list of 10 degrees or diplomas]; • 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. 72 The primary judge noted a drafting error which on one view of the setting out of the description of a 'combined course' conveys the impression that a course at the level of a Masters or Doctoral degree might qualify as a tertiary course for the purposes of the Determination. The primary judge reformulated the description of the final bullet point relating to a 'combined course' in this way so as to give those words their proper operation, in his Honour's view: • 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. 73 Before the primary judge, the appellant conceded that the reference to a course at the level of Masters or Doctoral degree was governed by the exclusionary word 'not' thus excluding his UTS course from the notion of a 'combined course' for the purposes of Category 5. The point of the reference by the primary judge to this category apart from recording the appellant's concession in relation to Category 5, was that it reinforced, in his Honour's view, the apparent statutory intention to exclude a course at the level of the degree of Master from qualifying study. 74 There is no error on the part of the primary judge. 75 The Act does not contain the implied guarantee contended for by Mr Wecker which is the foundation of his argument. Section 569B of the Act seeks to exclude from qualifying study for the purposes of s 569A and thus s 569(1), a course of study offered by a higher education institution at the level of Master or Doctor unless expressly specified in Schedule 2 of the Determination. Category 8 of Schedule 2 is not internally inconsistent. It is consistent with the intention of clause 7(2) of the Determination and the exclusion by Category 5 of courses at the level of Masters or Doctoral degrees in respect of a combined course. Nor is the Determination repugnant to a contended implied guarantee by operation of s 569(2)(b)(i).

Grounds 3 and 4 of the Appeal 76 The appellant contended before the Tribunal that he had notified Centrelink of his change of course. The Tribunal notes at [36] of its reasons, Mr Wecker's oral evidence before the Tribunal that he had telephoned Centrelink to advise of the change. The Tribunal notes at [9] that the hearing was adjourned on two occasions to enable Centrelink to provide further information and to enable Mr Wecker to provide additional information in response. The Tribunal also notes at [36] earlier evidence given by the appellant to the SSAT. That evidence was described by the SSAT at [12] of its reasons in these terms: 12. The Tribunal asked Mr Wecker about whether he had contacted Centrelink after he decided to change courses. He said that he did inform Centrelink that he had changed his enrolment. He doesn't recall when he actually contacted Centrelink, but thinks he sent a letter to Centrelink after he enrolled at UTS. He was aware that he had to notify Centrelink of any changes to his course of study, but his activity was the same … he cannot actually recall notifying Centrelink. 77 At [36] of the Tribunal's reasons, the Tribunal said this: 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 text books and decided to go to the Centrelink at Braddon while he was there to advise of his change of course. 78 The events in relation to the adjournments of the hearing are these. 79 Appeal Book p 219 contains an 'AAT Hearing Report' written by Ms Susan Mantaring on behalf of the respondent concerning the hearing on 8 November 2006. Mr Wecker made submissions concerning s 569(2)(b)(i) of the Act and the qualifying character of his UTS course. The respondent made submissions in reply. The hearing report notes at AB220 that the Tribunal member 'decided not to proceed to hear the matter in relation to the notification issues raised by Mr Wecker and in relation to the recovery of the debt in case she finds that Mr Wecker is qualified to be paid austudy in which case there would be no debt'. The hearing was adjourned to enable further submissions on other issues to be made. 80 The hearing resumed on 15 January 2007. Ms Mantaring made a report of that hearing (AB221, AB222). Ms Mantaring notes that the hearing dealt with submissions in relation to s 569 of the Act and other matters. Ms Mantaring's note records that Mr Wecker 'submitted that he has no debt as stated in a Centrelink online document (ODR) dated 26 August 2004. He argued that during that conversation with a customer service officer, he must have advised that he changed courses'. Ms Mantaring's note records that the Tribunal member 'agreed to adjourn the matter to allow Centrelink to determine whether the said document supports Mr Wecker's submission that he must have advised of the changes in his studies and that there should be no debt from 26 August 2004'. 81 The hearing resumed on 9 February 2007. 82 At the resumed hearing on 9 February 2007, the appellant relied upon a Centrelink document described as a print‑out of a computer file note relating to him. The document was attached to a witness statement of Ms Sally‑Ann Martin of 6 February 2007 filed by the respondent. Ms Martin was, at the date of her statement, employed by Centrelink as manager of the Student Services and Career Information Centre Area South West located at 13 Lonsdale Street, Braddon, ACT. Ms Martin's role involved the management of student services in Area South West including the processing of student payments and the management of the Career Information Centre at Braddon. Ms Martin said in her statement that she had been asked to comment on the computer file note. The computer file note contains these entries: Enquiry Type: ENQ Receipt Date: 26 AUG 2004 Auth: YGZ Office: SPU Sum: CSO ENQ OUS Ext Detail: RCO UPDATED. NO DEBT Txt: 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. LISTING REC FROM NSO RE MANUAL RATE ON RCO. IS ENTITLED TO HIGHER BB RATE, BUT SYSTEM IS PAYING AUTO. DON'T NEED RCO CODED. HAVE ENDED FROM DPT + 1. 83 As to that document, Ms Martin said this: 3. Attachment A shows a computer file note, known within Centrelink as 'DOC'. The document was created on 26 August 2004 by a Centrelink officer with the username 'YGZ'. YGZ was the username of Jane Lewis, a former Centrelink employee. The record further indicates that Ms Lewis was attached to the Centrelink team identified as 'SPU' which stands for the Student Services Team located in Braddon. 4. Jane Lewis no longer works for Centrelink. She was the manager of Student Services, Braddon before I took over from her in June 2006. I am aware that Ms Lewis was the manager in Student Services, Braddon in August 2004. 5. Doc of 26 August 2004 describes action that was taken by Jane Lewis on that date in relation to a manual rate (as opposed to a computer‑calculated rate) which was recorded on a screen known as the Rate Component Override screen (RCO). 6. The RCO screen is used to record non‑standard rates of payment. Generally, the Centrelink income security system is able to automatically calculate the correct rate of social security payments. In some cases this does not occur and the rate may need to be manually entered into the system for the correct rate of payment to occur via this screen. When a manual rate is being paid, reviews have to be conducted from time to time, to ensure the manual rate so updated to reflect changes which would otherwise be made automatically by the computer system. 7. I am aware that from time to time reports were provided to Student Services Centres by Centrelink's National Support Office with lists of all customers who had manual rates recorded. The role of Student Services Officers in relation to such reports was to look at a customer's computer record, check whether the manual rate was calculated correctly and to make any necessary updates. The phrase 'LISTING REC FROM NSO RE MANUAL RATE ON RCO' indicates to me that Ms Lewis was working from such a list when she accessed Mr Wecker's record. 8. While the source code of the document ('COS') is generally used to denote a 'counter statement', some officers use the code as a default code, even when information is not obtained from a customer directly. 9. From my reading of the document and Mr Wecker's record, it is unlikely that Mr Wecker attended a Centrelink office on this day to advise any changes. Firstly, Mr Wecker would not have been aware that he was receiving a manually coded rate of payment. Secondly, it would not be necessary to speak to Mr Wecker about changes to the manual rate, as such changes would be made by reference to the legislated rate of payment, not because of any changes of personal circumstances. Thirdly, Ms Lewis was working in Student Services on the first floor at the Braddon office in a team which generally has no public contact, that is, customers are not seen personally at the Braddon Student Services office. 10. I further note that the DOC indicates that after checking the record Ms Lewis found that the customer was automatically receiving the correct rate and therefore didn't need to have the RCO screen coded. She ended the effect of such coding from the 'DPT +1' which stands for 'Date Paid To +1'. 11. I have reviewed the payments received by Mr Wecker in August 2004 and found that there was no change in the rate paid to Mr Wecker as a result of the action taken by Ms Lewis in August 2004. As a result, no letter was generated to him. 12. There is no likelihood that the activity involved Mr Wecker being asked about whether there were changes to his study details. Investigation into the screens which were actioned with this activity show that only the RCO screen was updated. 84 Ms Schuster attended the resumed hearing on 9 February 2007 on behalf of the respondent. Ms Schuster prepared a hearing report (AB227). Ms Schuster's report notes Mr Wecker's contention that the computer file note was clear proof of his attendance at Centrelink 'because the DOC states that the information was provided by "counter statement". His explanation was that he specifically remembered attending Braddon CSC around that time as he had come to Canberra to pick up a cheque from the University and at that time also attended the CSC because it was convenient to do so'. Paragraph 1 of Ms Schuster's note also records: I offered to have Ms Martin give evidence, but neither the AAT nor Mr Wecker indicated they had questions for her'. 85 As to any investigation of or inquiry into any matter, Ms Schuster's note also records 'Mr Wecker suggested Ms Lewis may have been deported, removed or sacked by Centrelink in an attempt of a cover‑up. He invited the Tribunal to investigate that matter further, which Ms Isenberg declined'. 86 The Tribunal dealt with the resolution of the factual controversy in this way: 40. Ms Schuster explained that the first paragraph [that is all text above the paragraph in capitals at [82] of the these reasons] arises from the clerk making the record being obliged to enter some codes so as to be able to create an entry. Some or all of these codes (similar to auto text) are entered somewhat haphazardly, then automatically generate a narrative. 41. As to the second paragraph [the paragraph in capitals at [82]] Ms Martin's statement explains that there was an internal review of the rate at which Mr Wecker - and many others - was being paid. This, it seems, was standard procedure with manually entered rates of payment - Rate Component Override Screen (RCO) and undertaken at the request of the National Support Office. Hence the phrase 'Listing Rec from NSO re manual rate on RCO'. 42. The balance of the entry is to the effect that Mr Wecker was being paid correctly. That is, of course, on the basis of the information Centrelink had available to it. 43. Ms Martin stated that there was no likelihood that the entry was generated in respect of information supplied by Mr Wecker about his change in course. 44. On my reading, the first paragraph is equally consistent with Mr Wecker's account of attending the Centrelink office at Braddon, as it is with Ms Schuster's explanation of poor entry‑making. However, the relevance of the first paragraph falls away when read together with the second paragraph. Mr Wecker's submission did not attempt to explain the second paragraph, but focused on the first paragraph and the notation 'no debt'. 45. I accept Centrelink's explanation in relation to the first paragraph when read with the second paragraph, as explained by Ms Martin in her written statement. I do not have confidence in Mr Wecker's account of notifying Centrelink given that his evidence has varied on at least three occasions. His position from the outset of the hearing was that his entitlement to Austudy was consistent from the beginning of his studies, in which case there was no need to contact Centrelink. 46. In any event, Mr Wecker was obliged to notify Centrelink within 14 days of his change of course. Notification should have occurred well before 26 August 2004. 47. I can find no administrative error on the part of Centrelink. The debt was incurred when Mr Wecker did not inform Centrelink that he had enrolled in the Masters course at UTS. 87 The evidence of Ms Martin is speculation or reconstruction informed by her knowledge of the Braddon office, the codes used by Centrelink offices, the practice from time to time of adopting particular codes such as the Counter Statement Code (COS) as default codes rather than a reflection of customer activity and her knowledge of the practice of conducting reviews of payment rates, as an explanation of the steps Ms Lewis took on 24 August 2004. From her examination of the documents informed by such experience, Ms Martin infers that it is unlikely that the appellant attended Centrelink on 26 August 2004 to advise Centrelink of any changes. Ms Martin says that inference arises because the entry concerns a rate review. Such reviews are undertaken internally as a matter of management orthodoxy independently of the recipient. Since the process undertaken and resultant entry made on 26 August 2004 by Ms Lewis did not require the engagement of the appellant, it is said by Ms Martin to be unlikely that Mr Wecker attended the Centrelink office to advise of any changes. It may be that an inference arises from evidence of usual management practice at the Braddon office of Centrelink that Mr Wecker did not attend the Centrelink office on 26 August 2004 incidental to an internal rate review or to advise Centrelink of any changes to the rate of payment of austudy benefits to which he otherwise claimed an entitlement. Ms Martin however goes further and says that having regard to the entries made by Ms Lewis, it was unlikely the appellant attended Centrelink to advise of any changes (para 8 of her statement) and there is 'no likelihood' that the rate review activity involved the appellant being asked any questions (para 12 of her statement). Thus, inferentially the appellant was not present at the Braddon office as he contends. 88 The third basis for the inference of non‑attendance is that Ms Lewis was on the first floor of the Braddon office which 'generally' has no public contact (that is, customers of Centrelink are generally not seen 'personally' at the Braddon Student Services Office (para 8)). 89 No inference arises from Ms Martin's evidence of her understanding of the codes and practices adopted at the Braddon office as an explanation of the entries made by Ms Lewis on 26 August 2004, to the effect that the applicant did not attend the Braddon office of Centrelink on that day to notify a change of course. Although the Tribunal found the first part of Ms Lewis's entry consistent with the appellant's evidence of attending the Braddon office, the Tribunal reasoned that the relevance of that part of the entry fell away with the explanation of the second part of the entry. Thus, the Tribunal reasoned that the document as explained on the evidence of Ms Martin could not be regarded as either relevant to or corroborative of the appellant's version of events (para [44] of the Tribunal's reasons). At one level, the Tribunal might be thought to have simply tested the document to determine whether the entries were consistent with the appellant's evidence of attending the Braddon office rather than a foundation for adverse inferences. However, as the Tribunal treated Centrelink's explanation of the document as a record by Ms Lewis of an internal rate review and thus an answer to the apparent consistency between the appellant's oral evidence and the first part of the document, the Tribunal seems to have drawn an inference from the document and Ms Martin's explanation of it that the appellant was unlikely to have attended the Braddon office on the relevant day, as an element of its resolution of the factual matter of notification. 90 Inherent in the evidence of Ms Martin is the assumption that the appellant had no reason associated with a rate review to be at the Braddon office and the suggestion that had the appellant advised a Centrelink officer of a change of course, the officer would have been sufficiently astute to recognise the significance of the information or sufficiently knowledgeable about issues of entitlement concerning austudy payments (such as the notions of 'qualifying study' going to the concept of an 'activity test') that a computer file note would have been made reflecting no continuing entitlement on the part of the appellant to payments. 91 Since the document did not itself support the appellant's evidence of attendance and notification, the Tribunal put its ultimate conclusion on the further footing that it did not have 'confidence' in the appellant's account of notifying Centrelink 'given that his evidence has varied on at least three occasions'. At [47] of its reasons, the Tribunal made the finding that the appellant did not inform Centrelink of a change to the Masters course at UTS. 92 The primary judge was invited to make a finding of fact under s 44(7) of the AAT Act that, in effect, the appellant had notified Centrelink of the course change on 26 August 2004. In that context, in considering the Tribunal's assessment of the factual controversy, the primary judge said this: 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. 93 In resolving the factual issue of notification, the Tribunal was required to weigh the direct oral evidence of the appellant that he attended the Braddon office on 26 August 2004 and notified Centrelink of a change to his course of study, on the one hand, and competing evidence of inconsistencies in the appellant's explanation of the method of notification, together with Ms Martin's evidence and inferences sought to be drawn from her evidence, on the other hand. 94 The absence of any such entry is said to be evidence probative of the appellant's non‑attendance at the Braddon office, to support the finding of fact. The respondent, in any event, contends that the Tribunal made a clear finding of fact supported by its assessment of the appellant's inconsistent evidence as to the method of notification, squarely within the fact‑finding role of the Tribunal. That assessment led to a conclusion that it could not be confident of the appellant's account resulting in a finding that the appellant did not inform Centrelink of a change to the UTS course, as he contended.

The administrative decision‑making framework 95 By s 33 of the AAT Act, the Tribunal is not bound by the rules of evidence, may inform itself on any matter in such manner as it thinks appropriate and is directed to conduct a proceeding with as little formality and technicality and with as much expedition as the AAT Act, the investing legislation and a proper consideration of the matters subject to review, permit. The Tribunal is invested with jurisdiction to review a decision affirmed by the SSAT, by s 179(1) of the Administration Act. The Administration Act does not contain provisions which prescribe particular matters to be taken into account by the Tribunal in conducting its review. 96 Provisions such as s 33 of the AAT Act are facultative, not restrictive and serve the purpose of freeing tribunals, 'at least to some degree, from constraints otherwise applicable to courts of law and regarded as inappropriate to tribunals.' (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628 [49] per Gleeson CJ and McHugh J) although the extent of that freedom in any given case might be 'another question' (Eshetu at [49]). Nevertheless, the Tribunal in the discharge of its review function must act judicially (that is, in accordance with the requirements of procedural fairness) and reach conclusions which have a basis in evidence having rational probative force (Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685, per Deane J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J). Although the Tribunal is not bound by the rules of evidence, the underlying rules of rationality that guide notions of relevance and deductive and inductive reasoning inform the process of reaching a decision that is supported by evidence (Rationality and Judicial Review of Administrative Action, Dr G Airo‑Farulla, Vol. 24, Melbourne University Law Review, 543). 97 Describing the process of reasoning adopted by the Tribunal as irrational, illogical or based upon an unsound approach to the assessment of a document (as the appellant contends) or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of disagreeing with a finding of fact (Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5]). It is necessary therefore to precisely identify the 'nature and quality' of the error of the administrative decision‑maker and the legal principle that attracts a particular legal consequence, such as error of law, that is, the 'legal rubric under which a decision is challenged' (MIMA; Ex parte S20/2002 per Gleeson CJ at [9]). The scope of the legal rubric is conventionally understood in terms of the well known passage from Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ and as to misconceptions which might suggest an unsupportable supposition on the part of the decision‑maker, Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 at 360 per Dixon J and R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As to the constraints upon a court interfering with the decision‑maker's assessment of the evidence, in exercising supervisory review of administrative decision‑making, see Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 35‑36 per Brennan J. 98 However, at common law, want of logic is not synonymous with error of law (Australian Broadcasting Tribunal v Bond, per Mason CJ at 356, with whom Brennan, Toohey and Gaudron JJ agreed) and as to inferences, 'so long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' (his Honour's emphasis, Bond, per Mason CJ at 356). On the other hand, where a statute requires the decision‑maker to discharge particular duties, 'irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non‑compliance with the duty' (MIMA; Ex parte S20/2002 per Gleeson CJ at [9]). In the context of the particular statutory framework relating to protection visas under the Migration Act 1958 (Cth) and the role and duty of the Refugee Review Tribunal, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 observed at [38] that although the question of whether protection obligations relevantly arose included a consideration of factual matters, 'the critical question is whether the determination [by the Tribunal] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds' and 'inadequacy of the material before the decision‑maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error'. 99 In Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, Black CJ, von Doussa and Carr JJ at [25] observed that want of logic in drawing an inference will not of itself constitute an error of law. Their Honours also noted, however, that a want of logic 'may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn': see also NAMM of 2002 v MIMIA [2003] FCAFC 32 per French, Lindgren and Finkelstein JJ; MIMIA v W306/01A [2003] FCAFC 208 per French, Hill and Marshall JJ; NACB v MIMIA [2003] FCAFC 235 per Tamberlin, Emmett and Weinberg JJ; W404/01A of 2002 v MIMIA [2003] FCAFC 255 per French, Lee and Carr JJ; NATC v MIMIA [2004] FCAFC 52 per Heerey, Sundberg and Crennan JJ; VWST v MIMIA [2004] FCAFC 286 per Kiefel, Marshall and Downes JJ, applying these principles. In Minister for Immigration and Multicultural Affairs v Al‑Miahi 65 ALD 141, Sundberg, Emmett and Finkelstein JJ, said this: [34] The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision‑maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. 100 In this case, it was open to the Tribunal consistent with s 33 of the AAT Act to receive Ms Martin's statement into evidence. It was open to the Tribunal to rely upon the statement as an explanation of the codes used by Centrelink, usual management practices at the Braddon Student Services Centre and as evidence of at least Ms Martin's hypothesis of the rate review activity Ms Lewis undertook on 24 August 2004. It was not open to the Tribunal to reach a finding of fact that the appellant did not attend the Braddon office of Centrelink on 26 August 2004 and notify a change of course, based on an inference drawn from Ms Martin's evidence. That evidence assumed that had the appellant attended the Braddon office that day, a customer counter officer would, on balance, have been sufficiently astute to appreciate the significance of the appellant's change of course (in relation to continuing entitlements to austudy payments) and would, on balance, have made a note for others of it or have made directly an electronic entry in the appellant's file record. 101 The Tribunal's logic in drawing such an inference was faulty and the evidence of the document together with Ms Martin's explanation of it was not evidence that supports the finding. However, the Tribunal was entitled to conclude that the computer file note did not resolve the contest on the evidence one way or the other and did not corroborate the oral evidence of the appellant. The Tribunal was entitled to consider whether the document in conjunction with the Tribunal's assessment of the oral evidence given by the appellant as to the steps he said he took or the method he claimed to have adopted to notify Centrelink of a change of course, satisfied the Tribunal that the appellant had, in fact, notified the respondent of a change in his course of study. 102 The finding of fact that the appellant did not notify the respondent was a finding open to the Tribunal. Having reached that conclusion, the Tribunal could not be satisfied that the debt owed by the appellant to the Commonwealth 'is attributable solely to an administrative error made by the Commonwealth' or that the appellant 'received in good faith the payment or payments that gave rise to … the debt', for the purposes of s 1237A(1) of the Act. 103 The appellant contends that the Tribunal in relying upon evidence of inconsistencies in his evidence, denied him procedural fairness on the ground of ostensible or apprehended bias or alternatively, the Tribunal was affected by actual bias on the part of the member. There is no basis for either contention. The Tribunal in evaluating the contested evidence of notification and placing weight upon inconsistencies or apparent inconsistencies in the appellant's evidence of the method of notification was doing no more than discharging its obligation to reach a decision on material questions of fact with reference to the evidence on which those findings might be based (s 43(2B) of the AAT Act). The appellant relies upon a decision of Jambajimba v Dredge 33 NTR 19 at 21. In that decision, Muirhead ACJ observed that the rejection of 'a defendant's testimony in one case, because he or she had been found unworthy of credit on a previous occasion, would be entirely wrong'. The Tribunal reached a conclusion that it could not have confidence in the appellant's account as a result of its assessment of all the contested evidence before it on the controversy of fact concerning notification. The Tribunal's conclusion that it could not have confidence in the appellant's account is not the expression of actual or apprehended bias. There is simply no content to the contention. 104 Further, there is no apprehended bias on the part of the primary judge in concluding that his Honour could not interfere with the Tribunal's assessment of the evidence and, in particular, the weight attributed by the Tribunal to the appellant's evidence of notification in light of its concern about the appellant's different versions of the method of notification. 105 A further question arises as to whether the Tribunal had a duty to call Ms Martin before the hearing so as to make inquiries of her about any matter going to the weight to be attributed to her statement or to provide the parties with an opportunity to ask questions and, in particular, to provide the appellant with an opportunity to cross‑examine Ms Martin. One immediate difficulty is that on 9 February 2007 the respondent offered at the resumed hearing to make Ms Martin available to give evidence but neither the Tribunal nor the appellant 'indicated they had questions for her'. 106 Nevertheless, the appellant was unrepresented before the Tribunal. 107 The Tribunal undertakes a review of decisions made in the exercise of powers conferred by particular legislation (s 25(1), AAT Act). The Tribunal may determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers (s 25(4A)). The immediate parties to a review proceeding are the applicant and the decision‑maker although other interested parties may apply to be joined (s 30). The elements of s 33 governing procedure before the Tribunal have already been mentioned. The discharge of the review function will be undertaken by a proceeding which involves a hearing which ordinarily would be subject to directions which may or may not be made at a directions hearing (s 33(1A), (2), (2A)). Alternative dispute resolution processes might be invoked (Div. 3). The decision‑maker is required to lodge a statement with the Tribunal setting out findings on material questions of fact referring to evidence or other material on which the findings were based, reasons for the decision and every document relevant to the review (s 37). If the Tribunal considers that the s 37 statement is inadequate, the Tribunal may order a further statement to be provided (s 38). 108 For the purpose of reviewing a decision, the Tribunal may take evidence on oath, proceed with a hearing or adjourn a proceeding from time to time (s 40). A summons may issue to a person to appear before the Tribunal at a hearing to give evidence, produce books, documents or things in the control of the person (s 40(1A)). The Tribunal may give a party leave to inspect documents produced under a summons (s 40(1D)). The Tribunal has power to remit a matter to the decision‑maker for further consideration at any stage of a proceeding for review of a decision (s 42D). For the purposes of conducting a review, the Tribunal may exercise all the powers and discretions conferred by any relevant enactment on the person who made the decision and shall either affirm, vary or set aside the decision (s 43(1)). In giving written reasons for its decision, the Tribunal shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based (s 43(2B)). 109 Although the Tribunal is invested with these powers, the Tribunal is under no statutory duty to exercise a power of inquiry or compulsion. In that sense, the Tribunal is in an analogous position to the Refugee Review Tribunal in relation to that Tribunal's permissive powers (MIMIA v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [43] per Callinan J at [124]; SZJBA v Minister for Immigration and Citizenship & Anor 96 ALD 270; [2007] FCA 1592 per Allsop J [46] to [49]). The circumstances under which a decision will be invalid for failure to inquire are strictly limited. In Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169‑170, Wilcox J put the limitation in these terms: It is no part of the duty of the decision‑maker to make the applicant's case for him. It is not enough that the court finds that the sounder course would have been to make inquiries. But in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of decision‑making power in a manner so unreasonable that no unreasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information. 110 His Honour made those observations in the context of a Wednesbury unreasonableness claim. In Visa International Service Association & Anor v Reserve Bank of Australia (2003) 131 FCR 300, at 430, Tamberlin J accepted that a duty to inquire might arise 'in some circumstances' but observed that the duty can be founded on the ground of a duty to take into account relevant considerations (Tickner v Bropho (1993) 40 FCR 183 at 197‑199; Luu v Renevier (1989) 91 ALR 39 at 50). The circumstances that enliven the Prasad principle as a possible exception to the general principle accepted by Wilcox J of no duty to inquire, involve acceptance that there is obvious material available to the decision‑maker centrally relevant to the decision to be made and no attempt has been made to obtain that information before the decision‑maker reached a decision. The emphasis of Wilcox J upon Wednesbury unreasonableness (as that concept is properly understood) in formulating that test demonstrates the very difficult burden an applicant must discharge in order to establish a duty to investigate, as a matter of procedural fairness. 111 In undertaking the review of the SSAT's decision, the Tribunal adjourned the hearing of the proceeding on two occasions. The respondent filed Ms Martin's statement in order to address the document and the appellant was given an opportunity to make submissions about the evidential significance of the computer file note in the context of his oral evidence. The appellant relied upon the note as corroboration of his oral evidence of notification on 26 August 2004. The appellant had no questions he wished to put to Ms Martin. The Tribunal admitted Ms Martin's statement into evidence and considered the document and the attachments. A decision by the Tribunal not to make inquiries of Ms Martin and not to take steps to bring Ms Martin before the Tribunal at a hearing is not an exercise of decision‑making power in disregard of obvious material readily available and centrally relevant to the decision to be made. 112 Similarly, the Tribunal is under no obligation to adjourn the hearing so as to make Ms Martin available for cross‑examination by the appellant (Omran v Australian Postal Commission (1992) 15 AAR 232 per Wilcox, von Doussa and O'Connor JJ).

Ground 5 of the Appeal 113 By ground 5 of the Notice of Appeal, the appellant contends the primary judge erred by failing to make a finding of fact pursuant to s 44(7) of the AAT Act in these terms: That on the 26/08/04 Centrelink Braddon ACT, updated his [Paul Wecker's] 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). 114 The primary judge also noted that the appellant sought a finding in these terms: 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. 115 The primary judge concluded that the findings sought by the appellant were inconsistent with the findings of the Tribunal and in the absence of an error of law on the part of the Tribunal, it was not open to the primary judge to make such findings. There is no error on the part of the primary judge in so concluding.

Ground 6 of the Appeal 116 By ground 6, the appellant claims 'eligibility' for the waiver of debt provided by s 1237A(1) of the Act on the basis that the appellant satisfies both subsections of s 1237A(1A) of the Act. Those sections are in these terms: 1237A(1) Administrative error. 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 that proportion of the debt. 1237A(1A) Time limits. Subsection (1) only applies 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. 117 It can be seen from the sections that the statutory obligation of the Secretary to waive a right of recovery of the debt or the relevant proportion of the debt only applies or operates if the debt is not raised within six weeks of the event contemplated by subparagraphs (a) and (b) of s 1237A(1A). In other words, if the claimant has received austudy payments solely attributable to an administrative error and has received the payments in good faith and the Commonwealth raises the debt within six weeks from the relevant event, the Commonwealth is not compelled to waive a right of recovery by operation of s 1237A(1). The spirit of the section is that the Commonwealth has a relatively short period of time (six weeks) to identify its administrative error and, in effect, correct it by raising a debt for recovery of the monies paid in error, before a statutory waiver under s 1237A(1) applies, according to its terms. If the claimant has had the benefit of the payment for more than six weeks without the Commonwealth identifying its error and raising a debt, the claimant is entitled to call in aid the statutory waiver if he or she can make out the elements upon which the waiver depends. 118 The appellant contends that a debt was raised by the Commonwealth on 9 March 2006 well beyond the six week period contemplated by either subparagraph (a) or (b) of s 1237A(1A). So it was. That circumstance does not preclude the recovery of the debt or the relevant proportion of the debt nor does it entitle the appellant to a statutory waiver of the debt by the Secretary. The failure to raise a debt within six weeks of either event contemplated by s 1237A(1A) enlivened the application of s 1237A(1) according to its terms. The appellant however was not able to satisfy the Tribunal of the necessary elements upon which the section operates. 119 Having regard to all of these matters, the appeal must be dismissed with costs. I certify that the preceding seventy‑eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate: Dated: 19 June 2008 Counsel for the Appellant: The Appellant is self‑represented

Solicitor for the Appellant: The Appellant is self‑represented