Secretary, Department of Family & Community Services v Ung [2004] FCAFC 54

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Family & Community Services v Ung [2004] FCAFC 54 SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES v LAY-MINH UNG No S 626 of 2003 TAMBERLIN, SACKVILLE & FINN JJ ADELAIDE 10 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 626 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

APPLICANT

AND: LAY-MINH UNG

RESPONDENT

JUDGES: TAMBERLIN, SACKVILLE AND FINN JJ

DATE OF ORDER: 10 MARCH 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. By consent, the applicant pay the respondent's costs of the appeal as taxed or agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 626 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

APPLICANT

AND: LAY-MINH UNG

RESPONDENT

JUDGES: TAMBERLIN, SACKVILLE AND FINN JJ

DATE: 10 MARCH 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT

THE COURT: 1 This appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Tribunal raises a like issue to that raised by the applicant in Secretary, Department of Family & Community Services v Matheson [2004] FCAFC 53. 2 The respondent was in receipt of youth allowance, a benefit payable under the Social Security Act 1991 (Cth) ("the Act"). The applicant-Secretary considered Mr Ung had received payment to which he was not entitled for a particular period. The Secretary's decision to raise and recover a debt for the overpayment gave rise to the process of administrative review leading to the Tribunal's decision. 3 As in Matheson, Mr Ung was undertaking a degree course at the University of South Australia and the like question raised was whether he satisfied the activity test of Part 2.11 of the Act throughout the period in question: the Act, s 540. This in turn involved an examination of whether in respect of that period he was "undertaking full-time study": s 541(1)(a). This formula was itself defined for the Act's purposes in s 541B(1). 4 The submissions made to the Tribunal in this matter were the same as those made to the same Tribunal Member in Ms Matheson's case. A like conclusion was reached in both cases. On this appeal the same submissions were made as in Matheson. We in turn have reached a like conclusion to that in Matheson. Reference should be made to our reasons in that decision. 5 However, it is necessary that we make the following observations. Section 541B(1) of the Act, in defining "undertaking full-time study" requires a person amongst other things to be: (i) enrolled in a course of education at an educational institution: s 541B(1)(a)(i); and (ii) "undertaking in the particular study period … for which he or she is enrolled for the course": s 541B(1)(b)(i); at least three-quarters of the normal amount of full-time study in respect of the course for that period: s 541B(1)(b)(iii). 6 In Matheson we endorsed the view of the Tribunal (which was reiterated by the Tribunal in the decision under appeal) that the question of what was "the particular study period" in a given case was a question of fact, assuming of course that the Tribunal did not misconstrue the words of legislation. We need not repeat here our reasons for that view. 7 The factual circumstances in this matter differ from those in Matheson. Nonetheless, the fact finding made by the Tribunal was adverse to what was pressed by the Secretary and resulted in Mr Ung being found to be undertaking full-time study for the period in issue. 8 We were not taken to the facts of this matter in any detail. Nonetheless we consider it necessary to indicate that, as in Matheson, we consider that the conclusion reached by the Tribunal as to "the particular study period" for the purposes of s 541B(1)(b)(i) was one reasonably open to it on the facts.