ALIEU BANGURA and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 230
•7 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 230
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1608
GENERAL ADMINISTRATIVE DIVISION ) Re ALIEU BANGURA Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date7 April 2009
PlaceSydney
Decision The decision under review is set aside and in substitution therefore the Tribunal decides that Mr Bangura is to be permitted to withdraw from unit 300411 without penalty and any payments in respect of this unit be refunded. ..................[sgd]............................
Rear Admiral A R Horton AO
Member
CATCHWORDS
HIGHER EDUCATION – withdrawal without academic penalty – Bachelor of Science (Honours) course – course enrolment – failure to withdraw by census date – application for re-credit Student Learning Entitlement – consideration of special circumstances – decision set aside
Higher Education Support Act 2003 (Cth) – ss 79-1, 79-5, 79-10, 206-1, 209-5, 212-1, 238-10
Guidelines for Student Learning Entitlement – Chapter 5
University of Western Sydney — College of Health and Science — Electronic Undergraduate Handbook 2007
Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634
REASONS FOR DECISION
7 April 2009 Rear Admiral A R Horton AO, Member 1. In mid-2006, Mr Alieu Bangura (the “Applicant”) completed the Bachelor of Science (Advanced Science) course at the University of Western Sydney (“UWS”). On 20 July 2006, he was accepted as a Bachelor of Science (Honours) student, that course to be undertaken in semester 2 (Spring) 2006 and semester 1 (Autumn) 2007. Mr Bangura subsequently enrolled for the units he believed to be the recommended units in accordance with the University Handbook.
2. The University has contended that Mr Bangura failed to enrol correctly, and having incorrectly done so, he did not withdraw from the relevant “additional” unit — Research Methodology and Experimental Design (code 300411) — prior to the census date of 31 March 2007. Accordingly, an academic penalty pursuant to the Higher Education Support Act 2003 (“the Act”) was applied, this being ineligibility for a refund of upfront payment for that unit and a reduction in Student Learning Entitlement (“SLE”). Mr Bangura subsequently applied for “Withdrawal without Academic Penalty” (and hence refunding of payment and re-credit of SLE), which was refused by the Enrolments and Student Finance Officer on 16 January 2008 on the grounds that special circumstances were not evident.
3. An appeal by Mr Bangura was dismissed by an assistant academic registrar on 3 March 2008. Mr Bangura received notice of this decision on 5 April 2008 and applied for review by this Tribunal on 15 April 2008; an initial hearing took place before me on 18 November 2008.
4. Mr Bangura was initially to be self represented, but he sought legal assistance and was represented by Mr Tony Martin, solicitor of Wilshire Webb Staunton Beattie Lawyers. This lead to a minor delay in the scheduling of the hearing. Ms Tessa van Duyn, solicitor of Clayton Utz, appeared for the Secretary, Department of Education, Employment and Workplace Relations (“the Respondent”). I took into evidence the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the Respondent’s Statement of Facts and Contentions (Exhibit R1) and a response to Exhibit R1 by the Applicant (Exhibit A1). Mr Bangura gave oral evidence.
5. It became evident to me in the course of the hearing that additional documentation in respect of Mr Bangura’s enrolment was essential if the circumstances were to be properly explored and understood. The Respondent was tasked accordingly and in time, an affidavit by Ms Sophie Buck (an assistant academic registrar at UWS) with relevant attachments (Annexures A to J) was provided to the Applicant and the Tribunal. At a resumed hearing on 28 February 2009, Ms Alice Linacre, senior associate of Clayton Utz, represented the Respondent. A supplementary submission by the Respondent was taken into evidence (Exhibit R2) as was the affidavit and attachments by Ms Buck (Exhibit R3). Mr Bangura gave further oral evidence.
Issues
6. The issues in this matter are:
·What were the circumstances of Mr Bangura’s enrolment for the honours course?
·Did he enrol for the appropriate and correct courses as prescribed in the University Handbook?
·Did he have access to relevant unit outlines, and were these documents essential in order to understand enrolment criteria (and course content)?
·Are there special circumstances pursuant to subsection 79-5 of the Act such that it would be appropriate to permit withdrawal without academic penalty?
Evidence
7. Mr Bangura migrated to Australia from Sierra Leone under a refugee visa in April 2001 aged 18. He is now an Australian citizen. He completed the Higher School Certificate in late 2002; he stated that as English was the official language in Sierra Leone, he had no language difficulties but was given some extra English tuition in year 11.
8. In 2003 he enrolled for study towards a Bachelor of Medical Science degree at UWS. At the end of the year, he was invited to change to an Advanced Science degree, which he completed mid-year 2006, that is, at the end of semester 1. He described the course as involving various written assignments and oral presentations, and in general, all units required good communication. His evidence was that it was challenging, particularly in respect of external visits, but he did well and was eligible to undertake the honours course.
9. Mr Bangura enrolled for Science Honours (UWS course code 3611) in mid‑2006, this being a one-year course, which for him would entail semester 2 (Spring) in 2006 followed by semester 1 (Autumn) in 2007. At the initial hearing, he gave evidence that he manually lodged his enrolment form at the Student Centre, where discussions took place for maybe 15 minutes, and the form was then stamped. He does not have a copy of that enrolment form, nor was a copy available in the documents before me on 18 November 2008. Accordingly, and as explained above, Ms van Duyn undertook to seek a copy and to provide such copy to the Tribunal and Mr Martin. In turn, both parties would provide any further submissions, with only the Respondent taking up this opportunity prior to the resumed hearing on 28 February 2009 (Exhibit R2).
10. The affidavit by Ms Buck (Exhibit R3) specifically addressed the enrolment procedure in force at UWS in mid‑2006 and the responsibilities of the Student Centre at that time. She stated that she has been employed by UWS in her present role as an assistant academic registrar since February 2005 and goes on to say:
… I am familiar with the enrolment process at UWS. I confirm that at the beginning of 2006, the enrolment process at UWS was transferred from a manual hard-copy system to an online system.
… I was informed … that Mr Bangura’s case came before the Administrative Appeals Tribunal on 18 November 2008, and that at the hearing, Mr Bangura stated that he lodged his enrolment form … at the UWS Student Centre in or about June/July 2006. I confirm that there is no record of an enrolment form or enrolment application form in respect of … the Bachelor of Science (Honours) course … as he enrolled himself online for this course.
It was the practice in 2005 and earlier years for the student centres to check manual re-enrolment forms. However they only checked things such as if the unit was available, or whether it was full, or whether the pre-requisites were met. …. They did not give academic advice on which units to enrol in. This information is contained in the Handbook, which all students are advised to consult as part of their enrolment. The practice of manual re-enrolment was disbanded in 2006 with the advent of on‑line enrolment. Our records show that Mr Bangura’s enrolment in the honours course has been conducted completely on line. … [T]here is no process whereby the UWS Student Centre verifies or checks a student’s enrolment. It is the responsibility of each student to ensure that their online enrolment is done correctly.
….
11. Ms Buck goes on to state that online records show that on 11 August 2006, Mr Bangura enrolled online in:
(i) 200028 (which he also discounted on the same date)
(ii) 300412 (Science, Technology and Environmental Honours project)
(iii) 300410 (Advanced Topics and Research Skill);
and on 8 November 2006, he enrolled online in:
(i) 3004102 (Science, Technology and Environmental Honours project)
(ii) 300411 (Research Methodology and Experimental Design).
12. Ms Buck observed (at her paragraph 13) that Mr Bangura added unit 300411 (the unit in question) online in November 2006 and not manually in June/July as she understood to him having claimed in oral evidence. She goes on to state that units for the following year (i.e. 2007) could only be submitted in late October/early November 2006. In support of this contention, she refers to an email sent to all students on 6 November 2006 (Exhibit R3 Annexure C) directing online re-enrolment for 2007.
13. At paragraph 15 of her affidavit, Ms Buck reiterates that “Student Centres do not provide academic advice”, such advice being derived from the “on-line handbook in the first instance, then (if that was not of assistance) told to seek advice from their head of program.” At paragraph 16 of her affidavit, Ms Buck refers to UWS guidance on the enrolment policy (Annexure D) and the procedures for enrolment (Annexure E), wherein “[b]oth of these documents refer the student to the Handbook for further information on the Course requirements.”
14. Annexure F to Ms Buck’s affidavit is a copy of Mr Bangura’s Student Administration Admission Application dated 21 June 2006 — for the Bachelor of Science (Honours) Course — this having been submitted to the UWS Student Centre at Campbelltown. This application form is stamped as “RECEIVED”. Ms Buck contends that the stamp is dated 21 June 2006, but it is difficult to determine whether that is indeed the relevant date — suffice that the date stamp clearly shows receipt in June 2006 on a date after the 20th of that month. Nothing hangs on this issue.
15. Of particular relevance is a letter to Mr Bangura dated 20 July 2006 from Carmel Kennedy, Admissions Officer – Direct at UWS (Annexure I), advising that his application to study the Bachelor of Science (Honours) Course has been successful. The letter goes on to state “the next essential step is for you to activate your MyUWS account” (which permits students to communicate online with UWS) “and enrol online.” The implication in this letter is that no enrolment had been undertaken prior to confirmation that application to undertake the course had been approved.
16. Ms Buck concludes her affidavit with the following remarks:
In my opinion Mr Bangura may be confusing his application for admission to the …. course with his enrolment in that course. …
I understand that Mr Bangura believes that a course outline should have been given to him either in hard copy or by email and that this would have assisted him in understanding the course requirements. However, the course outline … can be found in the UWS Handbook (which is available on-line), this is a separate document from a unit outline which is distributed either by hard copy or by email. However they are based on unit enrolment, and are not a guide on what to enrol in.
… Unit outlines are distributed too late to be considered a guide for enrolment, and are based on what the student has already enrolled in (lecturers see who is in their unit, then send out the unit outline).
17. The UWS Handbook 2007, in respect of the Bachelor of Science (Honours) Course (Code 3611.1) (T4), provides a brief outline of the structure and purpose of the honours program, and states:
Students enrol in a 60 credit point honours project and either a 20 credit point research methodology and experimental design unit, or [my emphasis[ a 20 credit point advanced topics and research skills unit.
18. The recommended sequence that follows is in contradiction of this direction as it states in respect of a full-time course:
Autumn session
300412.2 Science, Technology and Environment Honours project
Choose one of:
300410.1 Advanced Topics and Research Skills
300411.2 Research Methodology and Experimental Design
Spring session
300412.2 Science, Technology and Environment Honours project
Choose one of:
300410.1 Advanced Topics and Research Skills
300411.2 Research Methodology and Experimental Design
19. Thus the “recommended sequence” gives the honours student the option of choosing a different unit in the second semester to that chosen in the first semester. Further, it is reasonably clear that 300412.2, as the honours project, has a 60 credit point value being studied over both semesters, but nowhere in the Handbook 2007, as far as is available to me, is a description given as to the credit point value of the individual minor units. The option of study given above in paragraph 18, read with the outline of the structure and purpose of the honours program (T4), implies that the optional unit in each semester has a unit credit point value of but 10 points, giving a total 20 credit point value when an option is chosen in each semester.
20. As to the selection of units, Mr Bangura stated:
… [O]ne of the subjects was repeated and that is how I knew that this one was meant for one year. And the other subject they said that one of this and one of this, so the first semester I chose the first one (Advanced Topics and Research Skills (Code 300410.1) (T10), the second semester I chose the alternate one (Research Method and Experimental Design (Code 300411.2) (T10).
21. At the resumed hearing on 28 February 2009 when this issue was further explored, Mr Bangura stated that in his view, an allocation of 20 credit points for Research Methodology and Experimental Design (300411.2) did not indicate whether the unit was a one‑ or two‑semester unit. He assumed the unit was one semester, and hence enrolled in November 2006 for a further one-semester unit (Advanced Topics and Research Skills — 300410.1) in 2007. In response to the Tribunal, Mr Bangura confirmed his reasoning to be that as he enrolled semester by semester for the major one-year unit (Science, Technology and Environment Honours – 300412.2), unless he re-enrolled for a further semester, any other unit would be enrolled for one semester only. Hence he was not aware of the continuation into a further semester of Advanced Topics and Research Skill (333410) as he had not enrolled in that unit for the Autumn session in 2007, and by choice enrolled in Research Methodology and Experimental Design (300411).
22. Mr Bangura gave further oral evidence, initially in respect of the contentions of Ms Buck as to the admission and enrolment procedures at UWS. Whilst acknowledging that online enrolment was introduced in 2006, he contended that it “was virtually in testing stage, like, the Student Centre provided a lot of help”. That is, he stated, such help continued until the online system was properly established.
23. Mr Bangura confirmed that he had submitted his application for the honours course as documented by Ms Buck, but that the Student Centre also entered his proposed units in the system, he having submitted a manual enrolment form for the course he proposed to undertake. He recalled that he had submitted this latter form “a matter of weeks later” and he believes there should be a record to confirm that the Student Centre had entered his units online. He stated that:
It’s like during this particular stage, they [the Student Centre] can even go to the screen with you and then enter the unit. … [M]ost of the time they encourage the student to enrol for the whole year, so that’s what I did. … [Y]ou can enter the unit and then confirm later.
So the units we entered, are entered units all for the whole year, and then just go occasionally to confirm – to do confirmation and see if the units are still there.
24. In response to Mr Martin, Mr Bangura went on to state that “after you are already admitted to the course, then after that stage, then you enrol”. I observe that his admission to the course was advised on 20 July 2006, some four weeks after application, and hence, from Mr Bangura’s evidence, his enrolment, even if initially undertaken by the Student Centre, would not have occurred until some time later. There is no dispute that the record shows that Mr Bangura enrolled online on 11 August 2006, Mr Bangura’s evidence being that that was by way of confirmation by him of the earlier enrolment – for which there is no evidence before me – undertaken through the Student Centre. I note that Mr Bangura made no mention of this enrolment form per se in his evidence at the initial hearing.
25. In respect of his selection of units, Mr Bangura observed that the evident confusion, in his mind, as to the appropriate units to undertake in 2006/2007 had been corrected in an update of the student Handbook. There is no evidence before me in respect of this observation. I have already referred, however, to the relevant contradictions in the honours course advice in the 2007 Handbook.
26. As to whether the Student Centre or the online enrolment system monitored the selection of units for a particular course, Mr Bangura referred the Tribunal to page 12 of the Enrolment Guide as provided by Ms Buck (Annexure D) which refers to electronic enrolment and states:
Note: If you have selected a unit that you are not allowed to enrol in, or too many units for one session, it is at this point that you will receive a message telling you this. You will need to go back and amend your chosen shopping cart accordingly.
27. This automatic “correction’’ facility, assuming it actually operates in practice – and I will refer to this aspect later – does not remove the “responsibility of each student to ensure that their online enrolment is done correctly” requirement as stated by Ms Buck in her affidavit (paragraph 6), but it does provide specific assistance to the student to assist him/her in ensuring enrolment in the appropriate units.
28. As to how Mr Bangura could confirm in which units he should enrol and ascertain the content of each unit and the study obligations associated with individual units, Mr Bangura raised two particular issues. Firstly, he must communicate with his supervisor to seek approval to apply for the honours course, and for his proposed honours project. Mr Bangura was adamant that he had done so, and that is confirmed in a letter to the Admissions Office by Professor W S Price of the School of Biomedical and Health Sciences dated 5 July 2006 (Annexure G). That letter also refers to Dr G Dennis and Dr R Castillo as co-supervisors.
29. Secondly, Mr Bangura believes he was disadvantaged in that the unit outline, seemingly for all his units, was not available to him until 12 April 2007, by which stage he was well into his second semester of study. That the details of advance topics and thesis outline was emailed on that date is evidenced in an email from Professor J Aldrich–Wright (T11). There is no evidence to suggest that course outline(s) were promulgated any earlier. Mr Bangura’s evidence is that his honours course did not involve formal face–to-face lectures, rather that one progressed study and project development based on the content of the unit outlines. Mr Bangura gave evidence that he was significantly disadvantaged as the late receipt of unit outline(s) gave him insufficient time to prepare his thesis for formal presentation.
30. In preparing her affidavit, Ms Buck sought advice from Professor Price and Dr Dennis as to whether Mr Bangura approached either “for a copy of the course outline for the Honours course” in June/July 2006. The respective responses (Annexure J) were “Professor Price cannot recall specifically a conversation with Mr Bangura on this issue” and from Dr Dennis, “No. He never requested this information from me”. On the contrary, Mr Bangura expressed absolute surprise at the above responses, going on to say (in reference to the response from Professor Price):
I approached him during that time. … The first thing we ask for (even in undergraduate studies) from lecturers is “Is the unit outlined?” … [F]or most of them, that is the first thing they actually cover … because the unit outline will enable you to plan ahead, to plan the whole course, like determine needs of study, like the textbooks you need to buy. … [I]t is a habit of me that always on my subject the first thing I inquire about is the course outline.
31. In response to the Respondent, Mr Bangura referred to periodic email, telephone and face-to-face contact with his supervisors, albeit he conceded that lecturers (supervisors in this instance) could have sent unit outlines by email, and that he had only sometimes checked his university email account. In response to the Tribunal, Mr Bangura confirmed that he had communication with his supervisors during the course of his honours year, but the fact remains that by his own admission, he did not access the detailed course outline until well into his second semester.
32. In December 2007, that is, six months after the nominal completion of the honours course, Dr Dennis provided an email (via Mr Bangura to the Student Centre)(T6) stating:
Alieu Bangura enrolled in both Research Methods (300411) and Advanced Topics (300410) when he should have chosen only 1 of these. This was a mistake by the student which was not detected until I reviewed his academic record this week. Please allow him to withdraw this unit with penalty …
33. On 18 January 2008, Mr Bangura’s application for withdrawal without penalty was denied (T8). On 18 February 2008, Dr Dennis provided a further letter in support of Mr Bangura’s appeal against the decision (T12). There are a number of points in that letter that bear comment, and hence I refer to the full document:
I was approached by Alieu Bangura to request a review of his award of an E-grade for Research Methodology and Experimental Design. I have consulted the Course Outline for the BSc(Hons) course 3611 and it clearly states that the student must choose either 300410.1 Advanced Topics and Research Skills or 300411 Research Methodology and Experimental Design.
I do not believe that the student received misinformation from the University, and I attach an email from Associate Professor Janice Aldrich-Wright (Head of Program and Unit Coordinator) showing that he received the Advanced Topics and Thesis unit outlines.
One explanation for why this student did not correctly enrol is that this student had difficulties understanding English. Although I believe that is the student’s responsibility to correctly enrol in a course, I do not believe this student had the comprehension skills to complete this task.
34. As I have earlier indicated, the course outline (and here I assume Dr Dennis is referring to the Handbook) is not at all clear, as the “recommended sequence” gives a choice in each semester. I presume that the documentation referred to from Professor Aldrich-Wright is that dated 12 April 2007 (T11), and I have noted this occurred well into the second semester of Mr Bangura’s honours year. In that context there is no evidence that Mr Bangura received misinformation – the point might be: Did he receive information in a timely manner? In saying that, the question arises, of course, as to whether he was making sufficient effort to obtain that information.
35. From his oral evidence before me, Mr Bangura has adequate comprehension and use of the English language. To suggest he did not have the comprehension skills to correctly enrol in a course – if that is the task to which Dr Dennis refers – seems at odds with his ability to achieve success in his bachelor course to the extent that he was recommended and accepted into the honours course.
36. It is appropriate to further consider the circumstances whereby Mr Bangura enrolled in Research Methodology and Experimental Design (300411) for semester 1 of 2007 when, apparently unbeknown to him, Advanced Topics and Research Skills (300410) was continuing into that new semester. I refer to the fact that Mr Bangura enrolled each semester for the primary unit, that is, Science Technology and Environment Honours (300412), yet did not do so for Advanced Topics and Research Skills (300410), which nonetheless continued into 2007. As I put to Mr Bangura:
What I am getting at is that I cannot come to grips with why 410, by the look of it, continued on for a full year, when in fact you were enrolling semester by semester? ‑‑‑Exactly, exactly..
… Going on from what Ms Buck is saying – as I understand it – you enrolled semester by semester. ---Yes
Which implied nothing continued. ---Yes.
37. Ms Linacre—who, I hasten to remind, was not involved in this matter at the outset — was generally in agreement that further exploration of this issue would be of benefit and obtained such by telephone from Ms Buck. This revealed yet further detail not previously before me as recorded:
Ms Linacre: I have an explanation, which is perhaps an added point for the Tribunal, as opposed to – well, it’s a clarification, but it raises another issue for your consideration. … She [Ms Buck] explained that the 410 unit should indeed – you are quite correct – he should have enrolled in second semester. The issue has arisen because the reason he did no enrol in the second semester, but was still granted or awarded the credit for that unit, arises from an error by the University. Sophie said she recently discovered this and in her view he should have completed a second semester for that unit before receiving the award, but by error, the University gave him the award short a semester.
38. Ms Linacre went on to confirm her understanding that 300410 (“410”) is a yearly unit, and Mr Bangura should have enrolled in that unit in late 2006 to commence semester 1 of 2007. Instead, he enrolled in 300411 (“411”). Whilst he did not enrol in 410 in semester 1 of 2007, the University made an error and granted him the credit for completing the yearly unit at the end of the semester 2 of 2006, without requiring him to complete a second semester of that unit. That is, he received 20 points for that unit, and this is shown at T10. In effect, by enrolling for 411 he was seeking a further 20 points, and hence found to be exceeding the required number of points. He should have withdrawn by the census date in order to avoid penalty. That he did not do, for the reasons outlined above.
Submissions
39. Both parties made submissions at the completion of the initial hearing, and confirmed and amplified these submissions in the light of further evidence, on completion of the resumed hearing.
40. Mr Martin submitted that notwithstanding the views of Ms Buck and the lack of confirmatory evidence, Mr Bangura stood by his evidence that he lodged a manual application for unit enrolment. Even if his evidence is not accepted, the question remains as to the adequacy and correctness of information provided by the University. There was ambiguity in the University Handbook, and the University has a legal obligation to act reasonably and to ensure that the information provided is appropriate to enable students to make proper decisions on that material. Further, the inadequacy of the material in this instance has resulted in an unjust outcome.
41. Whilst Mr Bangura accepts that he made a mistake during the enrolment process, he sought to ensure that he was able to obtain the proper information in order for him to undertake the honours course. Mr Martin drew the Tribunal’s attention to the letter to Mr Bangura from the University on 18 January 2008 (T8) which refused to allow withdrawal from 300410 without penalty, wherein it states:
Circumstances did not fall into a specific criteria [sic] – as a full time student you enrolled in the above unit as per the study pattern listed in course outline in the UWS Handbook.
Mr Martin submitted that such a statement merely adds to the confusion.
42. Mr Martin referred to the decision in Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634 wherein Brennan J (President of the Tribunal) stated at 645:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.
Mr Martin conceded that the policy was lawful, but submitted that adherence to the policy, in the light of the circumstances, would lead to an unjust decision. He submitted that three aspects need to be considered, namely: Were the circumstances beyond Mr Bangura’s control; did he understand the implications prior to census day; and were the circumstances such as to make it impractical for him to complete all the requirements of his course? Mr Martin submitted that consideration of these issues must lead to a just decision that SLE be re-credited.
43. For the Respondent, Ms van Duyn conceded that the Guidelines for Student Learning Entitlement, made pursuant to legislation by the Minister under section 238‑10 of the Act, provide policy intended to guide a decision-maker. As such, the determinative issue for the Tribunal is whether Mr Bangura’s circumstances constitute special circumstances for the purposes of section 79-5 of the Act, having regard to those guidelines. Ms van Duyn submitted that was not the case on the evidence before the Tribunal. She specifically referred to chapter 5.1.1 wherein the circumstances must be beyond the person’s control, and chapter 5.5.1 which states:
The higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
44. In considering these elements, Ms van Duyn submitted that the consequences were due to Mr Bangura’s mistaken enrolment, which he had conceded was a mistake on his part, and that by inaction he had failed to properly check or seek clarification of the situation prior to census date, a situation for which he had responsibility. Ms van Duyn submitted that the University had properly provided the necessary information to enable Mr Bangura to enrol in the appropriate units and to undertake his honours course – indeed, the enrolment policy of the University specifically states that responsibility for enrolment lies with the student. Finally, the Respondent was of the view that contrary to the statement by Dr Dennis, Mr Bangura has adequate comprehension skills such that correct enrolment was well within his capability.
45. At the resumed hearing, Ms Linacre submitted that the Respondent’s position remained as previously stated. The Applicant had not made out special circumstances such that re-crediting was appropriate. In particular, Mr Bangura had demonstrated a level of inactivity or inaction in respect of his enrolment procedure and monitoring progress; he had opportunities to resolve perceived ambiguities but did not do so. This was further evidenced by the fact that he did not consistently access his emails. There is no evidence before the Tribunal that Mr Bangura sought advice from the Student Centre, nor that he actively pursued advice from his supervisors. In summary, whilst the Respondent had some sympathy for Mr Bangura’s situation, special circumstances per the Act and guidelines have not been shown to exist.
Consideration And Decision
46. The evidence before me when the hearing of this matter was adjourned on 18 November (in order to obtain further documentary evidence as to the circumstances of Mr Bangura’s enrolment for his honours course) was that Mr Bangura had manually enrolled for his honours course through the Student Centre, and in doing so had inadvertently or otherwise selected too many units, and in turn had failed to withdraw from the additional unit — Research Methodology and Experimental Design (300411) — prior to the census date of 31 March 2007. It might be argued that his undertaking of this one-year course in semester 2 of 2006 and semester 1 of 2007 had made it just that more confusing with regard to the process of enrolment.
47. Suffice that further evidence placed before me on resumption of the hearing on 26 February 2009 painted a clearer picture of the circumstances, albeit there remained contradiction as to how Mr Bangura initially enrolled for his honours course. In the course of the hearing, further evidence arose which confirmed that the University had, inadvertently it seems, given Mr Bangura a pass (in a two‑semester unit) on completion of one semester, without him having enrolled in that unit for a second semester and seemingly without him being aware that a pass had been granted.
48. To elaborate on the above, and addressing the issues as earlier defined, I find the following:
(a) Mr Bangura applied for admission to the Bachelor of Science (Honours) course — a two‑semester course — on 21 June 2006, this being granted on 20 July 2006.
(b) Documentary evidence of enrolment before the Tribunal shows that Mr Bangura enrolled online in units 200028 (this being separate from the requirements of the honours course), 300412 and 300410 on 11 August 2006 for semester 2 of 2006; and 300412 and 300411 on 8 November 2006 for semester 1 of 2007. These dates were in accordance with online enrolment timetables.
(c) There is no evidence to support the contention of Mr Bangura that some time after lodging his application for admission, he manually enrolled in course units at the Student Centre.
(d) UWS Handbook (2007) prescribes that students “enrol in a 60 credit point honours project and either a 20 credit point research methodology and experimental design unit, or a 20 credit point advanced topics and research skill unit”. The Handbook also recommends a sequence of units such that a full-time student may “choose one of” Advanced Topics and Research Skills unit (300410) or Research Methodology and Experimental Design unit (300411) each semester. This sequence recommendation can be seen as contradictory to the general requirement.
(e) Credit points relate to the importance of the unit. There is no evidence before the Tribunal to indicate whether credit points relate to the duration — i.e., one or two semesters — of the unit.
(f) Mr Bangura received course unit outlines by email on 12 April 2007. This is not disputed, nor is there any evidence that such outlines were promulgated earlier. The contention by Mr Bangura that this delay in receipt of course detail impacted on his ability to enrol correctly is not accepted, as enrolment is based on the Handbook requirement, and the usual procedure is that unit outlines will be provided by the relevant supervisor after such enrolment.
(g) The “delay” in Mr Bangura receiving course unit outlines may well have impacted on his readiness and ability to present his thesis at the time required, but that is outside the matter before the Tribunal. In any event, and notwithstanding Mr Bangura’s evidence that he actively sought advice from his supervisors, it is difficult to understand how he met the requirements of the course and the relevant units without knowledge of the relevant criteria.
(h) I accept that Mr Bangura enrolled in Research Methodology and Experimental Design (300411) for semester 1 of 2007 in November 2006 in the belief this was an option for a one-unit course. His evidence is that he understood his earlier enrolment in Advanced Topics and Research Skills (300410) in semester 2 of 2006 was also a one-semester unit. I further accept this explanation given my findings in subparagraphs (d) and (e) above.
(i) At the resumed hearing, UWS confirmed that Advanced Topics and Research Skills (300410) is a two‑semester unit and hence continued into semester 1 of 2007. However, a pass in that unit was inadvertently recorded on completion of semester 2 of 2006 (T10). Unbeknown to Mr Bangura, he was nevertheless considered to be continuing that unit into semester 1 of 2007 and hence his enrolment for Research Methodology and Experimental Design was invalid.
(j) The UWS Enrolment Policy places responsibility for correct enrolment and regular monitoring of emails on the student. Both this document and the procedural guide for online enrolment advise that regular checking of enrolment status will confirm if a unit is not available because it does not meet the requirement. There is no evidence before me to confirm or otherwise whether such advice was placed on Mr Bangura’s online student record in respect of the invalid unit 300411.
49. The conditions in respect of whether special circumstances exist are quite rigorous, being defined in section 79-5 of the Act, and amplified in Chapter 5 of the Student Learning Entitlement Guidelines made by the Minister under section 238-10 of the Act. As earlier referred to by the Respondent, the circumstances must be beyond a person’s control and the full impact on the person must not become evident until on or after the census date. Further, I must be satisfied that Mr Bangura’s circumstances were beyond his control wherein a reasonable person would consider that his failure to withdraw from Research Methodology and Experimental Design (300411) by the census date in March 2007 is not due to Mr Bangura’s action or inaction, either direct or indirect, and for which he was not responsible.
50. As is evident from my observations on the evidence, I am concerned that Mr Bangura did not adequately monitor the activities relevant to his honours course, and I have reservations as to how he was able to progress his studies — albeit his evidence was that no units involved formal face-to-face lectures — when he was not in possession of unit outlines to provide the necessary study detail. I observe the negative response attributed to Professor Price and that of Dr Dennis (Exhibit R3 Annexure J) as to whether Mr Bangura sought copies of the course outline, but I note that the question was in respect of June/July 2006, and the format of the question negated the need for those respondents to comment on what, if any, further discussions or correspondence took place with Mr Bangura. Thus I accept his evidence that discussions with Professor Price and Dr Dennis took place at various times during the course but I remain of the opinion that these may well have been insufficient to enable him to resolve any concerns.
51. Contrary to the suggestion by Dr Dennis, I consider that Mr Bangura has adequate comprehension skills to enable him to undertake the requirements of the honours course, a view also held by the Respondent. Prior to the matter before me, he had demonstrated good academic achievement, reflecting more than adequate comprehension skills and understanding of the English language.
52. Whilst all the above has some relevance, the singular issue before me is whether special circumstances are present in respect of the failure by Mr Bangura to withdraw from Research Methodology and Experimental Design (300411) prior to the census date of 31 March 2007. He enrolled in that unit in November 2006 in the belief that it was an appropriate option in his interpretation of the criteria in the UWS Handbook. I have already concluded that the entry in the Handbook with regard to the criteria for units is unclear, and indeed contradictory.
53. There is no evidence before me to suggest that Mr Bangura appreciated that Advanced Topics and Research Skills (300410) was a one‑year (two‑semester) unit. He did not enrol in that unit for his second semester of study (but instead asked for 300411). It is most relevant that the Respondent relies explicitly on the UWS record of online enrolment, which confirms this situation. Unbeknown to the Respondent — and in turn the Tribunal — until the resumed hearing on 26 February 2009, the University gave Mr Bangura a pass in 300410 on completion of the first semester whilst continuing to record the continuation of the unit into the second semester. Being unaware of this continuing situation, and having enrolled in 300411, Mr Bangura had no reason, in my view on the evidence before me, to seek withdrawal without penalty from 300411.
54. Both parties referred to the decision in Re Drake (supra) wherein Brennan J observed that ministerial policy should be followed unless the policy is unlawful or its application tends to produce an unjust decision in the circumstances [my emphasis]. Not surprisingly, the parties differed as to its relevance in this matter. In following the latitude derived from the decision of Brennan J, I find to my reasonable satisfaction that in the circumstances of this case, and here I emphasise the importance of new evidence that arose in the course of the hearing, to uphold the decision under review which refused Mr Bangura’s application for re-crediting of the unit Research Methodology and Experimental Design (300411) would be an unjust decision.
55. Accordingly I find that the decision under review dated 16 January 2008 be set aside and Mr Bangura be permitted to withdraw from unit 300411 without penalty and any payments in respect of this unit be refunded.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member
Signed: ........................[sgd]....................................................
AssociateDates of Hearing 18 November 2008 and 26 February 2009
Date of Decision 7 April 2009Solicitor for the Applicant Mr Tony Martin, Wilshire Webb Staunton Beattie Lawyers
Solicitor for the Respondent Ms Tessa van Duyn with Ms Alice Linacre, Senior Associate, Clayton Utz
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