Nair-Marshall v Secretary, Department of Family & Community Services [2005] FCA 1164

FEDERAL COURT OF AUSTRALIA

Nair-Marshall v Secretary, Department of Family & Community Services [2005] FCA 1164 SOCIAL SECURITY – application for Pensioner Education Supplement – where applicant holds Master's degree – whether the applicant had completed a course for a degree of Master – whether question of law Social Security Act 1991 (Cth) Part 2.24A , ss 1061PB(1), 1061PB(2)(b)(i) Administrative Appeals Tribunal Act 1975 (Cth) s 44

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305 referred to OWEN NAIR-MARSHALL v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES No QUD 8 of 2005 SPENDER J 24 AUGUST 2005 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 8 OF 2005

BETWEEN: OWEN NAIR-MARSHALL

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 24 AUGUST 2005

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The time within which a notice of appeal from the determination of the Administrative Appeals Tribunal of 29 November 2004 be filed and served be extended to 11 January 2005. 2. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 8 OF 2005

BETWEEN: OWEN NAIR-MARSHALL

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: SPENDER J

DATE: 24 AUGUST 2005

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an application for an extension of time to file and serve a notice of appeal from a decision of Senior Member McCabe of the Administrative Appeals Tribunal ("AAT") given on 29 November 2004. The decision of the Tribunal was to affirm that the applicant was not eligible for a Pensioner Education Supplement ("PES") under s 1061PB(2)(b)(i) of the Social Security Act 1991 (Cth) ("the Act"). 2 The rules relating to the Pensioner Education Supplement are found in Part 2.24A of the Act. Section 1061PB(1) provides: 'For the purposes of this Part, a person is undertaking qualifying study if the Secretary is satisfied that: (a) the person: (i) is enrolled in a course of education at an educational institution; 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 1061PC); and (c) the person is a full-time student or a concessional study-load student in respect of that course (see sections 1061PD and 1061PE); and (d) the person satisfies the progress rules (see sections 1061PH and 1061PI).' 3 Section 1061PB(2) provides: 'A person is not undertaking qualifying study 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.' 4 The fact that the applicant holds a Bachelor of Arts, a Graduate Diploma of Education and a Master of Arts postgraduate degree was not in dispute before the Tribunal. Rather, the applicant sought to make a distinction between being awarded a degree and completing a degree. 5 The grounds of appeal are stated in the affidavit accompanying the application and are relevantly as follows: '3 My reasons for appealing this decision is it is wrong in fact and/or law 4 The AAT determined that my Application For Pensioner Education Supplement should be declined as I had completed a Masters degree 5 The Social Security Act (The Act) states in the body of the Legislation that a person who has completed a masters Level degree is not undertaking qualified study 6 The act dos not say anything about holding a Masters degree the language is clear and precise. 7 I have not completed a Masters degree as defined in the Act. I hold a Masters degree 8. I have not finished the Masters Degree and was awarded the degree.' 6 The applicant submitted his claim for PES in respect of a Graduate Certificate in Teaching Second Languages on 25 February 2004. 7 The claim was rejected on 12 March 2004 on the basis that the appellant had already completed a degree of Master, and was therefore not undertaking qualifying study pursuant to s 1061PB(2)(b)(i) of the Act. 8 The applicant requested a review on 22 March 2004, and the decision was affirmed on 5 April 2004. On 5 April, the applicant phoned Centrelink and requested a review of the determination of 5 April. On 11 May 2004, an Authorised Review Officer of Centrelink affirmed the initial decision to reject the claim. On 26 May, the applicant lodged an appeal with the Social Security Appeals Tribunal ("SSAT") against the determination dated 11 May 2004. On 17 June the SSAT affirmed the decision of 11 May rejecting the applicant's claim for PES. 9 On 5 July 2004 the applicant lodged an application for review of the decision of the SSAT with the AAT. On 29 November 2004 the AAT affirmed the determination of the SSAT. 10 On 11 January 2005 the applicant filed this application and an affidavit in support. 11 Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) relevantly provides that: '(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. … (2A) An appeal by a person under subsection (1) or (2) shall be instituted: (a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and (b) in such manner as is prescribed by the rules of court made under the Federal Court of Australia Act 1976. (2B) In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds: (a) if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision – the written statement contains reasons that were not mentioned in the oral statement; (b) the text of the decision or a statement of reasons for the decision has been altered under section 43AA.' 12 In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305, Wilcox J at 310 –311 considered the factors relevant to the grant of an extension of time in which to file and serve a notice of appeal from a decision of the AAT. They include: (i) provision of some acceptable explanation for the delay (ii) whether it is fair and equitable in the circumstances to extend time (iii) prejudice to the respondent (iv) merits of the proposed appeal (v) considerations of fairness as between the applicant and other persons in a like position 13 The affidavit accompanying the application says, in the ninth paragraph: 'I have had delays on posting this Application due to Christmas break 30 December 2004 at 2.00 p.m. through to 2 January 2005 and Australia Post's 4 days holiday between 31 December 2004 and 4 January 2005.' The delay was slight; at most it was for a period of 15 days over the Christmas period. It was not asserted that there was any prejudice to the respondent. 14 When asked: '…if there's any substance in the matter, then there would be absolutely no reason why an extension of time shouldn't be granted?' Counsel for the respondent replied: 'We can't say that there would be, your Honour.' In those circumstances, if the substantive appeal is arguable, an extension of time within which to file and serve a notice of appeal should be granted. 15 The Tribunal, in discussing the contention by the applicant that while he was awarded a Master's degree he had not completed a course for a degree of Master at an educational institution, said: '… I think that is a semantic discussion. His academic transcript says he graduated and the degree was conferred on 8 October 1998. There is no room for a generous interpretation of the legislation favouring the applicant, no matter how much sympathy the decision-maker might feel for the applicant's objectives. The legislation says what it says. The SSAT was right to conclude the applicant was not undertaking qualifying study within the meaning of the Act.' 16 There was no documentary evidence before the Tribunal supporting the applicant's assertion that the award of the Master's degree was conferred on him, despite his not having completed the course. 17 Section 1061PB(2) states that a person is not undertaking 'qualifying study' if they have 'completed a course for… a degree of Master'. 18 In his submissions, the applicant asserted again that: 'I have not completed a Masters Degree as defined in the Act. I hold a Masters Degree.' He further submitted that he had only completed six units towards the degree and that the degree required the completion of eight units. He submitted he was awarded this degree without completing the other two units and therefore, although he was awarded the degree, he never completed a course for a degree. 19 The applicant's academic transcript indicates that he had completed sufficient requirements to entitle him to award of that degree. It relevantly provides: 'Autumn Semester 1991 6036X Enrolled in Master of Arts – Communication and Cultural Studies 53001 Social Inquiry and Its Foundations CREDIT 53019 Communication Management HIGH DISTINCTION Spring Semester 1991 53002 Technology, Information, Communication PASS 53022 Research Design and Statistics FAIL Autumn Semester 1992 99998 LEAVE OF ABSENCE Spring Semester 1992 99998 LEAVE OF ABSENCE Autumn Semester 1993 53011 Text and Audience Studies PASS Spring Semester 1993 99999 WITHDRAWN WITHOUT PENALTY Second Semester 1997 01199 CONCURRENTLY ENROLLED ELSEWHERE Semester 1, 1998 99000 Unspecified Academic Credit (25%) A/CREDIT-UNSPECIFIED 01199 CONCURRENTLY ENROLLED ELSEWHERE Graduated Master of Arts (Communication and Cultural Studies) Conferred: 08 October 1998 ISSUED WITHOUT ALTERATION OR ERASURE G. ST. LAWRENCE REGISTRAR' 20 Exhibit B to the applicant's affidavit filed 1 April 2005 is a copy of the applicant's Master's degree certificate. There is no evidence that this was before the SSAT or the AAT. The certificate is in the following terms: 'The University of Western Sydney Nepean In the name of the Board of Trustees of the University of Western Sydney and by the Authority of the same be it known that Owen W. Nair-Marshall having fulfilled all the requirements has this day been admitted to the Master of Arts Communication and Cultural Studies with all the privileges attached to the same and the Board of Trustees has authorised the Seal of the University to be hereunto affixed (signature) Chancellor (signature) Vice Chancellor and University President (signature) Deputy Vice-Chancellor and UWS Nepean President (signature) Registrar Dated October 8th, 1998' (Emphasis added) 21 The applicant was enrolled in and ultimately graduated from a program of Master of Arts. There is no evidence supporting the applicant's assertion that he was awarded this degree despite having not completed the course for it. On the contrary, both his degree certificate and his academic transcript indicate that he completed a course leading to a degree of Master of Arts. 22 This conclusion is supported by the applicant's answer to question 17 on his initial PES claim form. In response to Question 17 'Have you completed a tertiary (post secondary) course (including TAFE)?' the appellant did not tick either the box marked 'No' or that marked 'Yes' but has followed the directions given as if the 'Yes' box was ticked, and gave the following details of 'courses completed in the past 10 years': 'Years Name of Institution/ Campus Name of course (e.g. 1993-1995) (e.g. Melbourne University) (e.g. Bachelor of Arts) 1993-1997 UWS Masters Degree 1991-1992 UWS Grad Dip Ed 1983-1990 Deakin Uni B Arts In response to Question 18 'Have you ever attempted a tertiary (post secondary) course (including TAFE), but not actually completed the course?' the appellant has ticked the box marked 'No'. 23 Mr Nair-Marshall, in his letter of 22 March 2004 requesting a review of the decision declining his application for PES, said: My postgraduate degree was taken over a 6 year period part time and spasmodically undertaken due to ill health. The degree was obtained in 1996, over 8 years ago and the relevance of its content is now diminished.' 24 The question of whether, in the terms of s 1061PB(2) of the Act, the applicant 'has completed a course for … a degree of Master or Doctor at an educational institution' is in my opinion a question of fact. An appeal lies only from the AAT to this Court on a question of law. Further, in my opinion the AAT did not err in its conclusion that the appellant had completed a course for a degree of Master at an educational institution. 25 I would grant an extension of time within which to file and serve a notice of appeal, but for the above reasons I would dismiss the appeal. 26 I will hear the parties on costs.