Secretary, Department of Employment, Education, Training & Youth Affairs v Tran, Truyen Kien [1997] FCA 810

FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW - application for AUSTUDY benefit - whether application for AUSTUDY can be considered where it is lodged after 31 December of the year for which application for payment of the benefit is made Student and Youth Assistance Act 1973 ss 7, 304 AUSTUDY Regulations regs 56, 58 Federal Court of Australia Act 1976 s 43 SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION TRAINING AND YOUTH AFFAIRS v TRUYEN KIEN TRAN No. VG 3 of 1997 MARSHALL J MELBOURNE 13 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 3 of 1997 ) GENERAL DIVISION )

BETWEEN: SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION TRAINING AND YOUTH AFFAIRS

Appellant

AND: TRUYEN KIEN TRAN

Respondent

JUDGE: MARSHALL J PLACE: MELBOURNE DATED: 13 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of the Administrative Appeals Tribunal of 6 December 1996 is set aside and in lieu thereof the decision of the Social Security Appeals Tribunal of 27 June 1996 is affirmed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 3 of 1997 ) GENERAL DIVISION )

BETWEEN: SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION TRAINING AND YOUTH AFFAIRS

Appellant

AND: TRUYEN KIEN TRAN

Respondent

JUDGE: MARSHALL J PLACE: MELBOURNE DATED: 13 AUGUST 1997

REASONS FOR JUDGMENT This mater is an appeal from a decision of the Administrative Appeals Tribunal ("AAT") constituted by Mr James Brassil. The appellant is the Secretary of the Department of Employment, Education, Training and Youth Affairs ("the Department"). The respondent is Truyen Kien Tran (Mr Tran) who at the material time was a secondary school student at Heather Hill Secondary College in Springvale. On 6 December 1996 the AAT set aside a decision of the Social Security Appeals Tribunal ("SSAT") which had affirmed a decision of an officer of the Department refusing to pay Mr Tran an AUSTUDY benefit for the period 20 September 1995 to 31 December 1995. Mr Tran celebrated his sixteenth birthday on 20 September 1995. Until that day, his family received a family allowance in respect of him. On 20 September 1996 those payments ceased. Shortly thereafter, Mr Tran's father (Mr Cuong Tran) sent a form to a Government Department in an effort to ensure that some form of benefit was payable in respect of his son. He was unable to recall whether the form was an application for AUSTUDY or to which Department the form was sent. On 23 January 1996, Mr Cuong Tran lodged an application for AUSTUDY in respect of Mr Tran. The application was granted and payment was made with effect from 1 January 1996. Mr Cuong Tran alsosought payment from the Department in respect of the period 20 September 1995 to 31 December 1995. This request was denied. The denial was affirmed on internal review within the Department. The short point for determination in this matter is whether the Department was empowered to consider the application for AUSTUDY with respect to the period 20 September 1995 to 31 December 1995. Section 7 of the Student and Youth Assistance Act 1973 ("the Act") empowers the Secretary of the Department to grant AUSTUDY benefits. Sub-section (2) thereof provides as follows: "Without limiting the generality of matters that may be dealt with by the regulations the regulations may: (a) specify the benefits that may be granted under this Part; and (b) specify circumstances in which benefits are not payable under this Part." Regulation 58 of the AUSTUDY Regulations provides as follows: "58. (1) Unless subregulation (3), (4) or (5) applies, an application relating to a type of course listed in the following table must be lodged by the closing date in the year in which application is made listed opposite that type of course in the table: Type of course Closing date full year course beginning 31 March - before 1 July 31 July - after 30 June 28 days after the course starts short course 28 days after the course starts late starting course