ANDREW WILSON and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 865
•10 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 865
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5436
GENERAL ADMINISTRATIVE DIVISION ) Re ANDREW WILSON Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Regina Perton Date10 November 2009
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
HIGHER EDUCATION ‑ student enrolled for full-time course – transfer to another university – request for withdrawal not received by original university – enrolment not withdrawn at census date – Student Learning Entitlements affected – whether grounds to re-credit entitlements – special circumstances – Ministerial guidelines – decision affirmed.
Evidence Act 1995 s 160
Higher Education Support Act 2003 ss 3-1, 70-1, 76-1, 79-1, 79-5, 79-10, 238-10
Student Learning Entitlement Guidelines, Chapter 5
REASONS FOR DECISION
10 November 2009 Regina Perton, Member 1. Andrew Wilson studied for two years at Victoria University (VU). In late 2007, he re-enrolled at VU for the third year of his double degree course. After re-enrolment, he transferred to La Trobe University (La Trobe) to complete his studies. Soon after becoming aware of La Trobe’s acceptance of his application, Mr Wilson left for an overseas trip. He delegated his mother to enrol at La Trobe on his behalf. He also signed a form to withdraw from studies at VU which his mother later posted. He and his mother believed that VU had received notification of withdrawal of his enrolment before the census date for withdrawing from a course, namely 31 March 2008. VU has no record of a request for withdrawal from studies from Mr Wilson between his re-enrolment in late 2007 and the census date, 31 March 2008. The consequence for Mr Wilson is that he has incurred a Higher Education Contribution Scheme (HECS) debt for the subjects for which he was enrolled in the first semester of 2008 at VU, as well as for the studies he undertook at La Trobe during the same period.
2. Mr Wilson was enrolled at VU and La Trobe as a Commonwealth supported student and he remains as such. That means he is entitled to study a prescribed number of subjects for which the Commonwealth loans him the full fee amount (HECS-HELP) under the HECS scheme. Mr Wilson has incurred a HECS-HELP debt that he is obliged to repay to the Commonwealth. The Higher Education Support Act 2003 (the Act) sets out the number of student learning entitlements (SLEs) that the Commonwealth allocates to Commonwealth supported students.
3. Once a person has enrolled and completed a unit of study, the person’s total SLE will be reduced and the person will incur a HECS-HELP debt. If a person is enrolled in a unit which he does not undertake but from which he has failed to withdraw by a specified census date, the SLE will nonetheless be reduced and he will incur the HECS-HELP debt. In special circumstances, the SLE can be re-credited and the attached HECS-HELP debt remitted. On 17 September 2009 VU decided not to re-credit Mr Wilson’s SLE. An internal review affirmed that decision. Mr Wilson sought review of the decision to refuse to re-credit the SLE and attendant debt he incurred in the first semester of 2008. VU was acting on behalf of the Department of Education, Employment and Workplace Relations (the respondent).
4. The issue for the Tribunal is whether there are grounds to re-credit the SLE for the subjects in which Mr Wilson was enrolled at VU for the first semester of 2008.
Legislation & Ministerial guidelines
5. Section 3-1 of the Act sets out the regime for financial support for higher education. Section 70-1 states that a person starts out with an SLE equivalent to seven years of full-time study. This reduces as the person undertakes units of study. Section 238-10 of the Act provides for Student Learning Entitlement Guidelines to be issued by the Minister (Ministerial guidelines).
6. Section 76-1 of the Act describes the process by which a person’s SLE is reduced.
(1) A person’s SLE is reduced if:
(a) at the end of the census date for a unit of study with a higher education provider, the person is enrolled in the unit; and
(b) the person is enrolled in the unit as part of a course of study…; and
(c) the person is a Commonwealth supported student in relation to the unit; and
(d) the person has, on or before the census date, completed, signed and given to an appropriate officer of the provider a request for Commonwealth assistance in relation to:
(i) the unit; or
(ii) where the course of study of which the unit forms a part is undertaken with the provider – the course of study.
(2) ...
(3) The reduction takes effect immediately after the census date for the unit of study.
…
7. Division 79 of the Act sets out the circumstances in which a person’s SLE can be re-credited. The relevant sections are as follows:
79-1 Main case of re-crediting a person’s SLE
(1) A higher education provider must, on the Secretary’s behalf, re-credit a person’s SLE … if:
(a) the person has been enrolled in the unit with the provider; and
…
(b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and
(c) the provider is satisfied that special circumstances apply to the person (see section 79-5); and
(d) the person applies in writing to the provider for re-crediting of the SLE; and
…
79-5 Special circumstances
(1) For the purposes of paragraph 79-1(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:
(a) are beyond the person’s control; and
(b) do not make their full impact on the person until on or after the census date for the unit of study in question; and
(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
(2) The Student Learning Entitlement Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 1(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.
…
8. The Ministerial guidelines, gazetted in July 2004, provide the following directions on the meaning of special circumstances in the Act:
5.1 PURPOSE
5.1.1 The purpose of this chapter of the guidelines is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:
(a) are beyond the person’s control (paragraph 79-5(1)(a) of the Act); and
(b) do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 79-5(1)(b) of the Act).
5.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
5.5.1 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.
5.5.5 This situation must be unusual, uncommon or abnormal.
5.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
5.10.1 The higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:
(a) before the census date, but worsen after that day; or
(b) before the census date, but the full effect or magnitude does not become apparent until on or after that day; or
(c) on or after the census date.
What happened after enrolment?
9. Mr Wilson re-enrolled towards the end of 2007 for the first semester of 2008 at VU. After re-enrolment, he was notified of La Trobe’s offer. Soon after that, he headed off for a three-week holiday in Thailand. The date for enrolment at La Trobe was during his absence so he gave his mother authority to act on his behalf. He also signed a withdrawal form for VU, which he had been downloaded from the VU website. He studied at La Trobe in the first semester of 2008 in the belief that VU was aware of his withdrawal from its course. At the end of the semester, he received notification from VU that he had failed all subjects that semester. He provided evidence to VU of his enrolment and successful studies at La Trobe but VU maintained that it had not received advice of his withdrawal. He now has a HECS liability for four subjects and a student record showing he received zero for those subjects.
10. Mrs Wilson recalls mailing the form at a post box in Bright, Victoria where she and Mr Wilson’s father had spent the weekend. The form and the envelope in which it was enclosed had been in the car for a few days. While her husband went to a café, she noticed the post box and put the A4 envelope addressed to VU in the slot personally. She presumed that VU received it. Neither she nor her son followed up the lack of an acknowledgement of the withdrawal. They did not know that they should have received a confirmation of withdrawal from VU once the form was processed.
11. The Course Withdrawal Application (Higher Education) – A40, VU’s prescribed form for withdrawal from studies, contains a number of instructions, which includes the return of the person’s student identity card. Mrs Wilson indicated that she had included the card in the envelope with the form signed by her son. She and Mr Wilson stated that they were not aware of the requirement (specified on the form) that the faculty had to approve the application (there was space on the form for that) and that the completed and faculty approved form was to be submitted at a student service centre on your campus. The form specified that the student certify that he had read the instructions before signing it. Mr Wilson said that he could remember signing the form but could not remember if he had read all the instructions. He said that he and his mother had assumed that sending the form to VU would result in his permanent withdrawal from VU.
12. Mr Wilson suggested that his failure to sign an attendance roll at VU before the census date should have resulted in VU following up the reason for his failure to attend. Had they chased up his failure to attend before the census date, he would have been able to tell them of the notice of withdrawal he had sent. Mr Wilson was asked why he had not responded to an SMS message from VU on 28 April 2008 concerning his failure to attend class. Mr Wilson said that he had not received it. He indicated that the last digit of his mobile telephone had been wrongly recorded by VU. He pointed out that, in any case, the SMS had been sent after the census date.
Are there grounds to re-credit the SLE?
13. The parties agree and the Tribunal is satisfied that Mr Wilson meets the requirements of subsections 79-1(1)(a) and (b) of the Act. However, there is disagreement as to whether his situation fits within the definition of special circumstances as set out in ss 79-5(1)(c) and 79-5 of the Act and the Ministerial guidelines.
14. The situation faced by Mr Wilson is indeed unfortunate. He is liable to the Commonwealth for a HECS-HELP debt despite not continuing with the VU course. He has also incurred a debt for the La Trobe course. However, despite its sympathy for his plight, the Tribunal is required to make its decision based on the legislation and prescribed guidelines.
15. Mr Wilson believed that he, through his mother, had sent a request for withdrawal from the VU course and that the university, in failing to acknowledge his request, had agreed to do so. However, the university has no evidence of the request for withdrawal of enrolment for the first semester of 2008. The Tribunal accepts Mr Wilson’s mother’s evidence that she believes she sent the request to VU. Regrettably, she did not keep a copy of the form nor note its date of despatch. She and her son had not noticed the instructions on the form that it had to be lodged at the student centre after faculty approval of the withdrawal. Whether it was due to their failure to comply with the form’s instructions or the mail going astray at or on the way to the university, the Tribunal is satisfied on the balance of probabilities that there was no withdrawal form received at the appropriate section of VU prior to the census date.
16. Mr Wilson suggested that the Tribunal should take account of s 160 of the Evidence Act 1995 concerning deemed receipt of postal articles within four working days of postage. However, as Mr Eteuati, a solicitor from Clayton Utz, for the Department, pointed out, that legislation applies to certain court proceedings but not to merits review before this Tribunal.
17. To find that Mr Wilson meets the requirement of special circumstances under the Act, the Tribunal must find that the circumstances were beyond his control (s 79-5(1)(a)); that they did not make their full impact on him until on or after the census date for the units in question (s 79-5(1)(b)); and, that the circumstances made it impracticable for him to complete the requirements for the unit that he was to undertake (s 79-5(1)(c)). The Ministerial guidelines set out the circumstances in which a person may meet each of these provisions. There is no general discretion as there is within certain provisions of social security legislation.
18. To be satisfied that Mr Wilson’s circumstances are beyond his control, the Tribunal must be satisfied that the situation is unusual, uncommon or abnormal (5.5.5 of the Ministerial guidelines). Furthermore, the Tribunal must be satisfied that the circumstances in which he found himself did not arise due to his actions or inactions, either direct or indirect (5.5.1 of the Ministerial guidelines). Mr Wilson’s failure to check on the status of his request for withdrawal is one of the factors leading to his failure to withdraw his enrolment at VU prior to the census date. Had he checked on the progress of his request prior to the census date, a period of more than a month after he believes his mother sent the form, he would have discovered that the university had not received it. Furthermore, had he or his mother followed the instructions printed on the form, namely to obtain faculty approval and then take the form to VU’s student centre, Mr Wilson would not have found himself in these difficult circumstances.
19. The Tribunal sought information on whether there was a limit on the number of subjects for which a person could obtain HECS-HELP funding in a particular semester, given Mr Wilson was liable for eight subjects in Semester 1 of 2008, which is double the usual full-time workload. Unfortunately, there is no such provision.
20. The Tribunal finds that the circumstances which led to Mr Wilson’s failure to withdraw his enrolment prior to the census date were not beyond his control, considering the criteria set out in s 79-5(1)(a) of the Act and paragraph 5.5.1 of the Ministerial guidelines.
DECISION
21. The Tribunal affirms the decision under review.
I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision of Regina Perton, Member.
(sgd) Cassie Renfrew
Clerk
Date of hearing: 1 September 2009
Date of decision: 10 November 2009
Advocate for the applicant: Self-representedAdvocate for the respondent: Mr T Eteuati
Solicitor for the respondent: Clayton Utz
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