Arnaout and Department of Education, Training and Youth Affairs

[2000] AATA 485

DECISION AND REASONS FOR DECISION [2000] AATA 485

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1882

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      FAMIA ARNAOUT
  Applicant
           And    SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS            
  Respondent

DECISION

Tribunal       Mr B.G. Gibbs, AM, Senior Member       

Date19 June 2000

PlaceSydney

Decision      The Tribunal affirms the decision under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
Higher Education Contribution Scheme – remission of debt – whether special circumstances.
Words and Phrases:  "Special Circumstances"
Higher Education Funding Act 1988, ss. 1066, 106L
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Beadle v Director-General of Social Security (1985) 60 ALR 225
Re Moran and Secretary, Department of Employment, Education and Training (1990) 13 AAR 7

REASONS FOR DECISION

19 June 2000           Mr B.G. Gibbs, AM, Senior Member                   
 Introduction            

1. This is an application by Mrs Famia Arnaout for review of the reviewable decision of the delegate of the Secretary, Department of Education, Training and Youth Affairs dated 16 November 1999, not to remit her Higher Education Contribution Scheme ("HECS") debt for four subjects in second semester 1998.
   Representation

2. At the hearing before this Tribunal Mrs Arnaout was self-represented but accompanied by her husband.  Ms S. Fraser, a solicitor, Australian Government Solicitor's Office, appeared for the respondent.
   Material

3. The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.  Other material, to some of which it shall be necessary to refer, was also received by the Tribunal during the hearing.
   Witnesses

4. The only person to give evidence at the hearing was Mrs Arnaout.
   Background

5. Mrs Arnaout married Mohamed Nawar Arnaout on 24 January 1998.

6. She later enrolled in the Bachelor of Commence course at the University of Western Sydney ("UWS") on 27 January 1998.

7. Mrs Arnaout completed a HECS Payment Options Declaration Form, indicating that she intended to defer payment of her HECS contribution.

8. The CENSUS date for semester 1 of 1998 was 31 March 1998, and for semester 2 the CENSUS date was 31 August 1998.

9. Mrs Arnaout incurred a HECS debt within the meaning of the Higher Education Funding Act 1998 ("the Act") of $2,389.00 in respect of four subjects for semester 1 of 1998.  However, the respondent was not able to consider Mrs Arnaout's application for semester 1 of 1998 because it was out of time, being more than 12 months from the date of withdrawal.  In respect of four subjects for semester 2 of 1998, Mrs Arnaout incurred a debt of $2,211.00.

10. On 1 May 1998 Mrs Arnaout was involved in a motor vehicle accident.  According to a statement which she made on 11 October 1999, the accident left her with "major back problems", for which she received ongoing physiotherapy.  She further stated that the accident resulted in a delay in completion of a TAFE Advanced Diploma course.  It is understood that Mrs Arnaout was enrolled in an Advanced Diploma of Accounting course from 1997, her full time enrolment continuing into 1998.

11. Mrs Arnaout became pregnant in May 1998 and gave birth to her son on 18 January 1999.

12. In an "Application for Remission of HECS Debt in Special Circumstances", which she completed on 26 July 1999, Mrs Arnaout stated as follows:

    "My financial circumstances have changed which prevented me from completing my studies.  As a newly married couple my husband is not able to support my university fees because we had may (sic) other financial expenses such as purchasing home contents, bond, rent besides my husbands immigration fees as he is not a permenant (sic) resident and has no permission to work in Australia till his application has been approved in addition to my home duties and studies at tafe."

Annexed to her application were copies of the following documents:

• Certificate of Marriage;

• Documents in support of her husband's application for visas to the Department of Immigration and Multicultural Affairs; and

• Rental receipt

1. On 23 September 1999, the respondent made a decision not to remit Mrs Arnaout's debts for semester 2 of 1998 and semester 1 of 1999.  Notification of the decision was forwarded to Mrs Arnaout on 23 September 1999.

2. On 13 October 1999 Mrs Arnaout wrote to the respondent, seeking review of the decision.  Several documents were submitted in support of her request:

• Statement by Mrs Arnaout dated 11 October 1999;

• NSW Police Service COPS report in respect of Mrs Arnaout's motor vehicle accident on 1 May 1998;

• Report by Dr Loretta Rozario dated 1 September 1999;

• South Western Sydney TAFE transcripts of Mrs Arnaout's academic record;

• Marriage Certificate;

• Birth Certificate of Mrs Arnaout's husband.

1. On 16 November 1999 the respondent made a decision not to remit the HECS debt for semester 2 of 1998.

2. In respect of Mrs Arnaout's debt for semester 1 of 1999, the respondent noted the advice of UWS that Mrs Arnaout was not enrolled for that semester, therefore no debt was incurred for semester 1 of 1999.  Notification of the decision was forwarded to Mrs Arnaout on 23 November 1999.
   The Law

3. Section 106 of the Act provides that where a person has incurred a debt, the Department may remit part or all of the debt if satisfied that the student, because of "special circumstances", did not complete course requirements during the semester, and that those circumstances merit remitting the debt.

4. Subsection 106L(3) defines "special circumstances" as including circumstances that are beyond the student's control, which do not make their full impact until on or after the CENSUS date, and make it impractical for the person to complete the course requirements.
   Contentions

5. It was the respondent's contention that Mrs Arnaout's circumstances do not amount to special circumstances within the meaning of the Act.

6. Mrs Arnaout, on the other hand, contends that her circumstances were special and therefore the debt in respect of semester 2 1998 should be remitted.
   Statement by Enrolments Manager, UWS Macarthur

7. Ms Lyndal McCulloch, Enrolments Manager, UWS Macarthur, provided a written statement for the purposes of these proceedings.  The statement concerns enrolment procedures at the UWS and Mrs Arnaout's enrolment at UWS in 1998.  References to Famia Hagemrad are references to Mrs Arnaout under her maiden name.

8. The statement by Ms McCulloch which is dated 17 March 2000, is as follows:

• A student wishing to enrol at the UWS may apply directly to the Universities Admission Centre (UAC), using the application form within the UAC guide, available at most newsagencies from August for the following year's intake.

• Students applying via UAC (Universities Admission centre) in 1998 would have been required to follow the procedures described in the following paragraphs:

  1.Students who are made an offer would receive from UAC an offer letter (with acceptance slip) and a brochure (provided to UAC from UWS, Macarthur) which explains the enrolment procedures.

  2.Students return the signed and dated acceptance slip (which confirms acceptance into the course offered).

  Students then attend the enrolment session and complete the following forms:

• Enrolment form confirming personal details, i.e. address, course, date of birth.  Part 4 of this form requires the student to sign the following declaration:

  "I agree to abide with the University of Western Sydney Act, the University of Western Sydney By-Law and the rules of the University.  I also take full responsibility for the consequences of any late enrolment on my part."
  (signature of student)

• Subject Selection form – this is where the student nominates subjects to be attended for the year.  On 27.1.98, Famia Hagemrad enrolled in 8 subjects, four for first semester of 1998 and four for second semester.

• Payment Option Form.

• Statistical Information Form (required by the Department of Education, Training and Youth Affairs).

  A student's enrolment will not be processed or validated unless the subject selection and statistical information forms are signed and dated.
  Our records indicate the Famia Hagemrad applied at UAC in Sydney.  She appears to have signed all of the above mentioned forms (Attachments "A", "B", "C" and "D" on 27th January, 1998).
  It is possible for a student to enrol by proxy.  The person enrolling on the student's behalf would need a signed letter of authority from the student.  This paperwork is then attached to original enrolment papers.  There is no such information on Famia Hagemrad's file.
  At the time of enrolment, Famia Hagemrad would also have been given information regarding tutorials and lectures.  Along with course information, information on HECS in the form of "HECS, Your Questions Answered" booklet would have been issued to her.
  After the initial enrolment session, a confirmation of Enrolment/HECS Notice would have been sent to students in late February/early March.  Another notice was sent after the HECS census date.
  The notices for the first and second semester of 1998 would have been sent to Famia Hagemrad to the following address (which was the address that she provided in her initial application to UAC)."

Statement by Mrs Arnaout

1. As indicated in paragraph 14 above, in requesting remission of her HECS debt for semester 1 of 1998, semester 2 of 1998 and semester 1 of 1999, Mrs Arnaout made a written statement.  The statement, which is dated 11 October 1999, reads as follows:

   "TO WHOM IT MAY CONCERN
   I request for remission of my HECS debt for first semester 1998, second semester 1998 and first semester 1999.
   In the following, the major obstacles I faced and contributed to obstruct my attendance to University.

   ·I got married on January 24th 1998 and I fell pregnant in May 1998; As married life imposes many responsibilities and burdens, such as house hold expenses, Electricity, Rent, Furniture, …, and additional Tafe expenses (as I took longer than expected to finish); it would have been impossible for me to afford University expenses (Administration fees, Books…) as well. 

   As I was faced with managing all the above expenses on my own, and receiving only one centerlink (sic) allowance, my husband does not have permission to work till September 1998 as he is not a Permanent resident and has a bridging Visa with no eligibility for centerlink (sic) allowance.

   ·On the 1st of May 1998 I was involved in a serious Motor vehicle accident which left a great impact on me, whether physically or psychologically, with major back problems and till now I am receiving treatment for these injuries (physiotherapy).  As a result of the motor vehicle accident I was delayed in finishing my Tafe Advanced Diploma.

   ·No Mail was forwarded to me, as I got married and left my parents home, due to the renovations at my parents home and the mess caused by these renovations, and the fact that I had a dispute with my parents therfore (sic) they did not forward any Mail to me whether it be personal, regarding Educational matters, HECS or University for this reason I was unaware of any matters regarding to my situation at University or HECS debt.

   ·Being a full time student at Tafe, I was set back in Tafe approximately 1 year finishing at the end of NOV 1998.  I called the University around about FEB 1999 and informed them about my current situation and my intention to withdraw, I was informed that they will fix my situation to withdraw, after they took all my details, they said every thing will be done and we will mail you the formal documentation which will prove your withdrawal, I waited till JUNE 1999 but I did not receive anything from the University.  I called them back again and they told me completely different that the withdrawal must be written to both University and HECS.  The delay in applying for my HECS debt was a result of the above mentioned."

Report by Dr Loretta Rozario

1. On 1 September 1999, Dr Loretta Rozario, a Consultant Rheumatologist, provided a report on Mrs Arnaout.  The report, which is addressed to Dr Abdul-Megeed (Mrs Arnaout's general medical practitioner), states as follows:

   "Many thanks for referring Famia Arnaout, a 21-year-old female.  Famia gives a history of having problems with her lower back.  Ever since she has been a few months pregnant she has been experiencing low back pain.  The pain is in the lower back without radiating into the buttocks or into the lower limbs.
   She cannot recall lifting heavy weights etc, but a few months prior to the onset of back pain she was involved in a motor vehicle accident in June 1998.  She was the front seat passenger while her mother was driving the car.  The car was involved in a motor vehicle accident and was a total write-off.  The other passengers included her mother and her husband, who appeared to have numerous soft tissue injuries and were investigated with x-rays etc at the nearby hospital.  Unfortunately as Famia was pregnant a few weeks at the time x-rays etc could not be done on her and, therefore, with simple analgesia she was discharged.
   A few months after the onset of this accident she has been experiencing low back pain, as she describes today.  The pain continued throughout pregnancy and now persists even after the birth of her baby, who is now 7 months old.
   She notes pain, especially on prolonged walking or doing simple household chores.  She is occasionally unable to sleep and tosses and turns in bed because of the persistent pain.
   On clinical examination she has mild scoliosis of the lumbar spine.  There is reduced range of movements of the lumbar spine, especially in flexion and extension.  Movements are reduced by up to about 10-20%.  Her straight leg raising is normal bilaterally.  Examination of the hips, knees etc are normal.  There are no abnormal neurological signs in the lower limbs.
   Plain x-rays of the lumbosacral spine done recently show a scoliosis of the lumbar spine.
   My impression is that Famia no doubt has back pain, which is multi-factorial.  The motor vehicle accident that she sustained in June 1998 certainly has contributed to some extent to the cause of her symptoms.  I feel these are aggravated by the pregnancy where low back problems are very often seen and certainly the tending of her young child does not make it any better. She has a scoliosis of the lumbar spine, which is a major contributing factor to the persistent low back pain.
   I have therefore discussed this with Famia and advised her various prophylactic measures to prevent the pain from deteriorating, especially in the years ahead.  I have suggested physiotherapy, exercises, swimming and the use of simple analgesia.
   I have not commenced nonsteroidal anti-inflammatories etc as Famia is breastfeeding.
   If in a few months time with this conservative treatment there is no improvement I will be happy to review and reassess her."

Oral Evidence – Mrs Arnaout

1. As indicated, Mrs Arnaout gave evidence during the hearing.

2. In the course of doing so she reiterated the various points to which she had referred in her statement dated 11 October 1999.

3. As will be noted, in her written statement Mrs Arnaout also stated that she contacted the University in about February 1999 and again in June 1999, concerning her intention to withdraw from her course.

4. As mentioned earlier, Ms McCulloch in her written statement sets out the enrolment procedures at UWS.  She then went on to state that the University records indicated that Mrs Arnaout applied at the Universities Admission Centre and that she appears to have signed all of the relevant forms, including:

• Acceptance of Offer, Course 692101 – Bachelor of Commerce – full time at UWS.  Dated 27 January 1998;

• HECS – Payment Options Declaration Form – Bachelor of Commerce – Dated 29 January 1998.

It was Mrs Arnaout's assertion that although she accepted that she signed the documents in question, she could not recall filling out the details recorded thereon.  She further asserted that she did not attend the enrolment session to which Ms McCulloch refers, nor did she arrange for her enrolment by proxy.
Finding

1. I find that Mrs Arnaout's circumstances do not justify the exercise of the respondent's discretion to remit her HECS debt for semester 2 of 1998, having regard for section 106L of the Act.

2. As indicated, the CENSUS date for semester 2 of 1998 was 31 August 1998.  No evidence has been provided by Mrs Arnaout as to how her circumstances changed on or after that date.  Nor is there evidence that, due to circumstances beyond her control, she was prevented from withdrawing from her studies before the CENSUS date.

3. During the hearing Ms Fraser invited the Tribunal's attention to Re Beadle and Director-General of Social Security (1984) 6 ALD 1, in which the Tribunal (Toohey J, Presidential Member) concluded that for special circumstances to exist, the relative circumstances of the matter must be viewed in their entirety, and as a consequence could fairly be described as "unusual, uncommon or exceptional". See also Beadle v Director-General of Social Security (1985) 60 ALR 225, in which the Full Federal Court held that what would constitute special circumstances must depend upon the circumstances of the particular matter.

4. I find that the applicant's circumstances do not amount to "special circumstances" within the meaning of the Act and therefore there is no justification for the exercise of the respondent's discretion to remit the debt.
   Decision

5. The decision of the Tribal will be that the decision under review is affirmed.

   I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of:

   Mr B.G. Gibbs, AM, Senior Member

   Signed: .............(C. HINRICHS)...............................................
     Personal Assistant

   Date/s of Hearing  25/5/2000
   Date of Decision  19/6/2000
   Counsel for the Applicant        Self-represented
   Solicitor for the Applicant         -
   Counsel for the Respondent    Ms S. Fraser
   Solicitor for the Respondent    Australian Government Solicitor