Aul and Secretary, Department of Education
[2021] AATA 436
•9 March 2021
Aul and Secretary, Department of Education [2021] AATA 436 (9 March 2021)
Division:GENERAL DIVISION
File Number(s): 2018/4760
Re:Krystal Aul
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:9 March 2021
Place:Sydney
The decision under review is affirmed.
...............................[sgd].........................................
Chris Puplick AM, Senior Member
CATCHWORDS
HIGHER EDUCATION – VET FEE-HELP – enrolled in diploma at TAFE – request to re-credit – whether special circumstances exist – whether the applicant’s circumstances were beyond her control – whether the applicant’s circumstances made their full impact on or after the census date – whether impracticable for the applicant to complete the requirements for the unit in the relevant period – no special circumstances found – decision under review affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) sch 1A cls 46(2), 48
CASES
Adamson and Secretary, Department of Education and Training [2015] AATA 141
CVSH and Secretary, Department of Education [2018] AATA 4447
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634
ER and Y Aston and Secretary, Department of Primary Industry [1985] AATA 306
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Nash v Secretary, Department of Education and Training [2016] AATA 991
Secretary, Department of Social Security v Hales [1998] 82 FCR 154
Shi v Migration Agents Registration Authority [2008] HCA 31
Tralongo and Secretary, Department of Education [2016] AATA 393
Ullah and Secretary, Department of Education and Training [2018] AATA 2159
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
SECONDARY MATERIALS
Concise Macquarie Dictionary (seventh edition, 2017)
VET Administrative Information for Providers (July 2013)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
9 March 2021
Ms Krystal Aul (the Applicant) has sought a review in this Tribunal of a decision by the Secretary, Department of Education, Skills and Employment (the Respondent) to refuse her request for a re-crediting of fees paid on her behalf under the VET FEE-HELP scheme.
On 1 February 2016 and 4 February 2016, the Applicant sought re-crediting of fees for three courses in which she had been enrolled, respectively a Diploma of Project Management and a Dual Diploma of Marketing and Management.
The applications were made to TAFE NSW which was the provider of the relevant education services which, on 18 February 2016 declined the applications which were considered together.
The Applicant sought an internal review of this decision (10 March 2016) which was affirmed on review (21 March 2016). On 21 August 2018, the Applicant applied to this Tribunal for a review of that decision and the matter was heard using the Microsoft Teams Platform (under COVID-19 protocols) on 1 February 2021.
VET FEE-HELP AND THE LEGISLATIVE SCHEME
VET FEE-HELP is a form of student loan in which the Commonwealth pays to the education provider the fees which would otherwise have been payable by the student. These loans are then repaid by the student through the taxation system once their earnings reach a designated repayment threshold. The threshold itself varies year by year. There are provisions whereby a student, if they withdraw from a course of study, provided they do so by a specified date, are freed from any liability for their loan debt incurred to that point.
All students who avail themselves of VET FEE-HELP are provided with a comprehensive booklet (in hard copy or on-line) which sets out all the relevant details about the payment, management, repayment and liabilities attached to their loans.[1] It is the responsibility of each student to make themselves familiar with the details so provided to them, including details about payments, repayment or re-creditation of loans.
[1] Tribunal documents (T docs) at [147]-[198].
The loan scheme is established under the Higher Education Support Act 2003 (Cth) (the Act). The relevant sections of the Act are set out in the Respondent’s Amended Statement of Facts, Issues and Contentions (SFIC) as follows:
2.1 A student may be entitled to VET FEE-HELP assistance (a loan) for vocational education and training (VET) units of study, if they meet the requirements set out at clause 43 of Schedule 1A to the Act. The Commonwealth pays the amount loaned to the student directly to the VET provider to discharge the student's liability to pay his or her VET tuition fees, pursuant to clause 55 of Schedule 1A to the Act.
2.2 The amount of VET FEE-HELP assistance loaned to a student, reduced by any amount recredited to the student, is that student's FEE-HELP balance, pursuant to subdivision 104-B of Part 3.3 of the Act.
2.3 A student can apply to a VET provider, under clause 46 of Schedule 1A to the Act, for the re-credit of their FEE-HELP balance in respect of a unit of study. Under subclause 46(2), a VET provider must, on the Respondent's behalf, re-credit a person's FEE-HELP balance in relation to a VET unit of study 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 clause 48); and
(d) the person applies in writing to the provider for re-crediting of the FEE-HELP balance; and
(e) either
(i) the application is made before the end of the application period under clause 49; or
(ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.
2.4 Clause 49 of Schedule 1A to the Act provides that the time period for making an application under clause 46 of Schedule 1A is:
(a) if the applicant has withdrawn their enrolment and been informed that the withdrawal has taken effect, the period of 12 months after the day specified in the notice as the day the withdrawal takes effect; and
(b) otherwise, 'the period of 12 months after the period during which the person undertook, or was to undertake, the unit'
(the application period).
2.5 Clause 48 of Schedule 1A to the Act provides that:
For the purposes of paragraph 46(2)(c), special circumstances apply to the person if and only if the VET 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 VET unit of study in question; and
(c) make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit.
2.6 If a person's FEE-HELP balance is re-credited under subclause 46(2) of Schedule 1A to the Act in relation to a VET unit of study, the VET provider must pay to the Commonwealth an amount equal to the amount of VET FEE-HELP assistance to which the person was entitled for the unit.
There are a number of terms used relating to when certain aspects of the VET FEE-HELP scheme become operational. These are set out in the material provided to students as:[2]
·Start Date - this is the date on which your Unit of Study begins
·Administrative Date - this is 10% of the way through your Unit of Study. It is the date by which you must either:
opay for your Unit of Study; or
oindicate that you intend taking out a loan
·Census Date - this is 20% of the way through your Unit of Study. If you are taking out a loan, it is the date by which your enrolment in the Unit of Study is confirmed and you incur a VET FEE-HELP debt
·End Date - this is the date on which your Unit of Study finishes.
[2] Tribunal documents at [39].
APPLICANT’S ENROLMENTS
The Applicant has a long and somewhat complex history of enrolling in certain courses and then seeking to transition to other courses as her perceived needs or academic/educational interests changed. These occurred during 2013 and 2014. They are summarised in the Respondent’s SFIC as follows:
Original enrolment
Transitioned to
Applicant subsequently enrolled in
2013
Unit
Diploma of Management
BSB1107 - 01V07
Start date: 2 December 2013
Census date: 7 January 2014
End date: 30 November 2016
Diploma of Leadership and Management
BSB51915R2 - 01V01
Transition date: 3 February 2016
End date: 30 November 2016
Certificate III in Early Childhood Education and Care
CHC30113-01VO1
Transition date: 5 May 2016
End date: 30 November 2016
2013
Unit
Diploma of Marketing
BSB1207 - 01V04
Start date: 2 December 2013
Census date: 7 January 2014
End date: 30 November 2016
Diploma of Marketing
BSB51215R1 – 01V01
Transition date: 3 February 2016
End date: 30 November 2016
2014
Unit
Diploma of Project Management
BSB51413 – 01V01
Start date: 29 June 2014
Census date: 19 August 2014
End date: 30 June 2017
Diploma of Project Management
BSB51415R1-01V01
Transition date: 11 January 2016
End date: 30 June 2017
N/A
It is not necessary for the Tribunal to rehearse the full details of the Applicant’s record in terms of either their contacts/interactions with the TAFE authorities or their progress with the course work arising from their enrolment. Suffice to say that:
·the Applicant enrolled in courses which were to be conducted by “distance/online education”;[3]
·they entailed various units of study where there were 1220 hours of recommended study projected;[4]
·the Applicant applied for and was granted VET FEE-HELP for her various courses and total tuition fees amounted to $12,425 being $2,235 for the 2013 Diploma of Marketing; $5,760 for the 2013 Diploma of Management and $4,430 for the 2014 Diploma of Project Management;[5]
·the Applicant does not appear to have completed any of the course work or submitted any of the assignments which were required of her.[6]
[3] Supplementary T docs at [206-208].
[4] Respondent’s SFIC at [8.1] and [8.16].
[5] Ibid at [8.4] and [8.21].
[6] There is considerable evidence of the extent to which TAFE officials engaged with the Applicant regarding her lack of progress with her courses. Supplementary T docs at [263]-[269] passim.
APPLICANT’S LEVEL OF INDEBTEDNESS
The Tribunal has noted the enrolment fees for each of the courses, however there is a “loan fee” attached to each. These loan fees amount to a total of $2,515.[7] Taken together with the course fees themselves, the Respondent advises that the level of the Applicant’s indebtedness amounts to $14,910.00.
[7] Comprising Diploma of Marketing = $447; Diploma of Management = $1,152 and Diploma of Project Management = $886. Advice from Respondent dated 5 February 2021.
APPLICANT’S PERSONAL HISTORY
The Applicant was born in December 1992 and appears to have been a good student at high school. Sometime in 2010/2011, she enrolled at the University of Wollongong to study psychology.[8]
[8] Neuropsychology Report, Dr Thomas Gates, 18 March 2020 (Gates Report). Applicant’s Submission at Tab [3b].
In March 2011, the Applicant was involved in a serious motor vehicle accident which resulted in her sustaining significant injuries, requiring major surgery and leading to a prolonged period of hospitalisation. Among her injuries were damage to her pelvis requiring reconstructive surgery and possible uterine damage which led to her being advised that it would not be possible for her to have children.
Although there is no medical evidence before the Tribunal as to this prognosis in relation to the future possibility of becoming pregnant and bearing children, and the Respondent relies upon this to call into question the Applicant’s claim on this matter,[9] the evidence given by the Applicant (in submissions[10] and orally), her husband and her sister at the Tribunal hearing leads the Tribunal to accept as a fact that she was so advised. The Applicant’s husband also mentioned further advice to this effect resulting from consultations at a fertility clinic, although the date of this is uncertain.
[9] Respondent’s SFIC at [15.11].
[10] T docs at [2].
After the accident, the Applicant suffered a noticeable loss of cognitive function in terms of her memory and ability to recall details. She was placed on a regime of anti-depressants from which she later sought to withdraw, with some difficulty.
She enrolled in the first of her proposed courses of study in or around November 2013. However, at about the same time, she was involved as a victim of domestic violence from her then partner and at one stage attempted suicide. The domestic violence issues became a matter for the courts and the Applicant was involved in court cases, which were traumatic for her, in the period from January to September 2014.
After her accident she spent a brief time living with her sister, but thereafter faced a prolonged period of unstable accommodation, telling the Tribunal that she had at least nine different addresses. At the same time, she was employed in a variety of jobs, particularly in the hospitality industry before starting on a more stable career in the recruitment industry.
At some stage, apparently in the period of either 2012 or 2013 the Applicant travelled overseas. She told the Tribunal that this was a period of about six months and that she spent the time in China where she had been recruited to work as “a model”. Her sister, in evidence confirmed this but said that the trip involved time in both China and Thailand.
Her enrolment at TAFE commenced in December 2013 and, as outlined above, involved initial enrolment in certain courses and then transfers to others. The end date of the 2013 courses was 30 November 2016 and the 2014 course ended on 30 June 2017.
In late November 2014, the Applicant met her now husband and the couple were married in October 2016. Medical evidence before the Tribunal suggests that in mid-late October 2015 the Applicant, unexpectedly given her previous medical advice, fell pregnant.[11] She suffered a very difficult pregnancy but, fortunately, gave birth to a healthy child in July 2016.
[11] Dr Aneale Uppal’s letter of 30 January 2016 certifies the Applicant as being “18 weeks pregnant” at that time. T docs at [108].
In an undated letter, but one which attaches a medical certificate dated 30 January 2016, the Applicant sought to withdraw from the Diploma of Project Management, Diploma of Marketing and the Diploma of Leadership and Management courses.[12] There is what appears to be a follow-up email from the Applicant dated 1 February 2016 confirming these arrangements.[13]
[12] T docs at [104-105].
[13] T docs at [11].
It will be noted that each of these courses has a census date which well predated the date of the Applicant’s withdrawal and hence a debt for repayment of the VET FEE-HELP fee was created.
On 1 and 4 February 2016, the Applicant applied for re-creditation of the VET FEE-HELP fees for each of these courses.
In more recent times the Applicant has regained a degree in physical health, although she still suffers from various effects of the car accident. She has safely delivered a second child. She has been able to assist her parents when they suffered financial difficulties, including the loss of their home in bankruptcy proceedings and has, with her husband established their own home. She has developed a successful career in the recruiting industry, working for a number of companies and now manages her own team at an IT recruitment company.
ELIGIBILITY FOR RE-CREDITATION
Re-creditation may be granted if all the conditions of subclause 46(2) of Schedule 1A to the Act are satisfied.
The Respondent accepts that the Applicant meets the requirements of:
·paragraph 46(2)(a) in that she was properly enrolled
·paragraph 46(2)(b) in that she did not complete the requirements for the course(s)
·paragraph 46(2)(d) in that she has applied in writing for re-creditation
·paragraph 46(2)(e) in that her application was made within the application period specified in clause 49 of Schedule 1A to the Act.
However, the Respondent disputes that the Applicant meets the requirements for paragraph 46(2)(c): “the provider is satisfied that special circumstances apply to the person”.
Subclause 46(2) is cumulative in its requirements, meaning that each and every one of the criteria must be met before re-creditation can be granted.
The question for the Tribunal then becomes simply, does the Applicant meet the special circumstances as outlined in the Act? It also notes that those special circumstances must relate to the courses in which the Applicant was originally enrolled and not those to which she sought a subsequent transfer.
“Special circumstances” are those outlined in clause 48 of Schedule 1A to the Act. It has three elements and again, all of them need to be satisfied for an application to be successful. The elements to be satisfied are whether the circumstances advanced:
(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 VET unit of study in question; and
(c)make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit.
The special circumstances advanced by the Applicant are, in essence:
(a)Difficulties arising from the physical impact of the 2011 motor vehicle accident;
(b)Difficulties arising from the mental/psychological/neurological impact of both the motor vehicle accident and the Applicant’s experiences as the victim of domestic violence and the traumas induced by that and the associated court proceedings;
(c)Difficulties arising from the Applicant’s pregnancy and her subsequent parental responsibilities; and
(d)Ongoing employment demands which prevented her from finding the necessary time to complete her study obligations.
The Applicant makes the point to the Tribunal that these circumstances should be taken as a whole and not individualised in terms of the application of clause 48 requirements. The Tribunal agrees with this proposition: they constitute what, in another context related to “special circumstances” has been referred to as “a constellation of factors”[14] and should be considered together.
[14] Secretary, Department of Social Security v Hales [1998] 82 FCR 154 at [162] per French J.
The relevant census dates are 7 January 2014 for the 2013 units and 19 August 2014 for the 2014 unit. The relevant completion periods are 2 December 2013 to 30 November 2016 for the 2013 courses and 29 June 2014 to 30 June 2017 for the 2014 unit.
The accident left the Applicant with major problems with her pelvis, in which she had screws inserted and occasioning continuing back pain. There was a period (2014-2015) when the Applicant resorted to the use of alcohol and illicit drugs to manage her feelings of both pain and depression and although she saw a psychologist on a number of occasions, she did not persist with this treatment, “as she did not feel she was seeing any benefits”.[15]
[15] Gates Report at page [2].
The Tribunal has been able to consider the several reports of Dr Thomas Gates (Clinical Neuropsychologist, Liverpool Hospital Brain Injury Rehabilitation Unit) and Dr Adeline Hodgkinson (Director of that same unit). Both indicate that the Applicant suffered brain damage as a result of the motor vehicle accident and there is reference in the Respondent’s SFIC to the result of an MRI scan report by Dr Jeff Kuan which attests to the presence of a “small focus of gliosis with cortical atrophy in the right superior frontal gyrus.”[16]
[16] Respondent’s SFIC at [6.4].
There is agreement in the medical evidence that, as a result, the Applicant suffers from persistent amnesia, a loss of memory for specific details, otherwise described as a “mild cognitive deficiency in her working memory.”[17] Dr Gates, in a report dated 18 March 2020 suggests that the Applicant “has been able to get her life back on track over the last 4-5 years and appears to be functioning well in a demanding role within a recruitment company.” However, he notes her continuing levels of stress and anxiety and “symptoms suggestive of sub-clinical post-traumatic stress disorder.”[18]
[17] Report of Dr Hodgkinson, 25 June 2020: Applicant’s Submissions at Tab [5c].
[18] Letter of Dr Gates, 18 March 2020, Applicant’s Submissions at Tab [5c].
A degree of improvement in her general emotional wellbeing was noted by her husband in his evidence to the Tribunal, although he also commented upon her need to keep writing down or diarising things because of problems with at least short-term memory loss.
By contrast, the Applicant’s sister told the Tribunal that she thought that her sister’s mental health had not improved at all – “she is just able to cope with it better.”
The Tribunal has also been able to consider various Police and Court reports which attest to both the Applicant’s attempted suicide in 2013 and the incidence of domestic violence to which she was subjected to by her ex-partner. This occasioned the necessity for her to appear in Court on five separate occasions both in relation to proceedings for an Apprehended Violence Order and as a witness in proceedings involving some of the same parties. She was also the victim of a robbery at her home which resulted in the loss of personal effects and jewellery.[19]
[19] Details of these are contained in NSW Police Department records attached in the Applicant’s Submissions at Tab [5c].
There is evidence of the Applicant’s somewhat less than entirely rational behaviour during this period. For example, on 8 May 2014 the Applicant advised that she was seeking to change courses because “I will be soon joining the RAAF and in doing this I will need to change the qualifications I am wanting to gain to suit this life change.”[20] There was never any such realistic prospect.
[20] T docs at [46].
The Applicant writes on occasions that she has “a full time job” when in fact her employment was casual and sporadic. On 8 May 2014, writing to the TAFE authorities the Applicant states: “I have (sic) a full time job when I first started the course I thought I could manage both work and study but my work commitments have been a lot higher then (sic) what I first calculated.”[21]
[21] T docs at [46].
Nevertheless, the Applicant submitted a Study Plan on 2 May 2016 (for the Early Childhood Education and Care course to which she was seeking a transfer) which makes clear that she expected to be able to complete the necessary level of study.[22] Furthermore, the Applicant acknowledges that:
When I originally signed up for the course in 2013 I was young and didn't have a clear idea of what I wanted in the future. I was not in the right mind frame to commit to studies or this course.
Since then I have been working fulltime as a marketing manager and although I do enjoy this career I do not want to pursue it.
I'm currently 31 weeks pregnant with my first baby girl, so I would like to do something that would be relevant to this exciting new life journey I'm about to take. I will be finishing my full time work on the 17th of June 2016 and will be staying at home full time. This will give me enough time to complete my studies. I'm well aware that my course ends this year so if a transfer is granted I will be asking for an extension.
I’m also well aware that my course requires work placement, as I will be home fulltime I will be able to complete this work placement. I have both grandparents who don’t work that can take care of my child and my partner has flexible hours.
I’m very passionate about children and once I’ve completed this course and work within the industry for a few years I aim to open my own childcare centre.[23]
[22] Supplementary T docs at [294]; [299-302].
[23] Supplementary T docs at [295].
The Tribunal notes that this statement is somewhat at odds with the statement provided by the Applicant’s sister dated 2 November 2020 which implies that her sister was severely incapacitated by and during her pregnancy.[24] Nevertheless, the Tribunal prefers to rely upon the more contemporaneous statement of the Applicant herself rather than the much later statement of a third party without, in any way, seeking to disparage that evidence.
[24] Applicant’s Submissions at Tab [5c].
In terms of their temporal dimension it must be noted that the motor vehicle accident occurred some three years before the first enrolment; the domestic violence incidents and court appearances occurred after the census dates for both the 2013 and 2014 units whereas the Applicant’s pregnancy post-dates it.
ASSESSMENT OF SPECIAL CIRCUMSTANCES
The Respondent’s department has published a guidance document, VET Administrative Information for Providers (the AIP), which sets out the principles to be applied to the interpretation of the Act and which, in the absence of any compelling reasons to the contrary, should be followed by the Tribunal.[25] However, two points need to be made qualifying this, in the first instance, policy is not law[26] and secondly, the Tribunal must make its decision on the basis of the material currently before it, some of which may not have been available to the original decision-maker(s).[27]
[25] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634 at 645; Nash v Secretary, Department of Education and Training [2016] AATA 991 at [33]-[34].
[26] “Policy is not law. A statement of policy is not a prescription of binding criteria.” ER and Y Aston and Secretary, Department of Primary Industry [1985] AATA 306 at [21].
[27] Shi v Migration Agents Registration Authority [2008] HCA 31.
In addition to the AIP, there is considerable judicial and Tribunal authority relevant to the matters which have been raised by the Applicant.
In relation to questions of what may or may not have been beyond an applicant’s control, circumstances which the AIP characterise as “unusual, uncommon or abnormal”[28] previous decisions of this Tribunal suggest that where an applicant was aware of pre-existing conditions, or the likelihood of exacerbating existing conditions prior to enrolment and yet proceeded with that enrolment, subsequent events or manifestations of difficulties would not be characterised as having been beyond their control.[29]
[28] AIP Chapter 10.
[29] Adamson and Secretary, Department of Education and Training [2015] AATA 141 at [118-120]; Tralongo and Secretary, Department of Education [2016] AATA 393 at [24].
The Tribunal has consistently held that entering into various forms of employment, including full time employment, either prior to or post-enrolment is not a circumstance beyond an applicant’s control.[30]
[30] Nash v Secretary, Department of Education and Training [2016] AATA 991 at [51]; Adamson and Secretary, Department of Education and Training [2015] AATA 141 at [120].
The Tribunal has considered the question of whether or not falling pregnant, even if this was unplanned or unexpected, and having a child is a matter “beyond the control” of an applicant. In CVSH and Secretary, Department of Education,[31] the Tribunal stated:
There were also other stressful events, including: the building of a new home; work commitments; financial pressure associated with the Applicant's work; and the birth of an unplanned baby which placed further financial pressure on their family. This collection of circumstances, whilst undoubtedly stressful for the Applicant and his wife, could not, in the Tribunal's opinion, be considered to be "unusual, uncommon or abnormal" as these types of events are ordinary and regular life occurrences.
[31] [2018] AATA 4447 at [58].
The Respondent relies upon this decision to claim that the Applicant’s pregnancy was, in effect, not a matter beyond her control, nor was it unusual, uncommon or abnormal, and hence cannot be advanced by the Applicant as supportive of her claim.[32]
[32] Respondent’s SFIC at [15.13].
This Tribunal finds no basis from departing from the approach taken in CVSH and although it recognises the fact that the pregnancy was unexpected in that the Applicant and her husband did not believe it was actually possible, this does not make it, in any meaningful way, different from other unplanned or unexpected pregnancies.
With this guidance at hand, this Tribunal is satisfied that:
(a)The impacts of the motor vehicle accident (with their attendant physical and mental impacts), issues of domestic violence and the traumas resultant from this, the court appearances and the impact of the robbery of her home, were all matters which were clearly beyond the control of the Applicant.
(b)All of the difficulties identified by the Applicant, other than those relating to her pregnancy, made their full impact prior to any of the relevant census dates. Matters arising from the Applicant’s pregnancy and parental responsibilities only made their full impact after the census date.
These findings accord with the determination made by the Review Officer in her determination of 18 February 2016.[33]
[33] T docs at [111].
The question then becomes, are these findings such as to have made it “impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit”, which is the final limb of clause 48 which must be satisfied for this claim to be successful?
On this issue, guidance is provided to the Tribunal by the decision in Zabaneh and Secretary, Department of Education and Training,[34] where the Tribunal stated:
As unfortunate as it is that Mr Zabaneh does not enjoy good health and that his parents have died, we are not satisfied that his circumstances were such that it was impracticable for him to complete the requirements of each unit within the relevant semester as required by s 104-30(c). "Impracticable" means "… not able to be done" [Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers]. On the evidence, it might have been difficult for him to do so but the circumstances on which Mr Zabaneh relies were not such that completion of the requirements of the four units of study was not able to be done.[35]
[34] [2016] AATA 569.
[35] Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at [45].
The Concise Macquarie Dictionary[36] provides the following definition of “impracticable”:
1. Not practicable; that which cannot be put into practice with the available means;
[36] Seventh edition, 2017.
In order for the Applicant to be successful on this point she must demonstrate more than mere pressure, stress or inconvenience in terms of her ability/inability to complete the work required of her. Cases before the Tribunal have made it clear that circumstances may be very difficult[37] and challenges of both physical and mental health conditions may be pressing but something more is required to meet a threshold of impracticability.[38]
[37] Ullah and Secretary, Department of Education and Training [2018] AATA 2159 at [36].
[38] Georgiou and Secretary, Department of Education and Training [2019] AATA 170 at [20].
The courses were capable of being completed online. To this extent, claims that work commitment (part time or full time) make study “impracticable” are not sustainable. Overwhelmingly people who study online do so while also engaged in other activities such as employment or caring for families or dependents.[39]
[39] Nash v Secretary, Department of Education and Training [2016] AATA 991 at [56].
The Applicant herself, as late as 2 May 2016 was writing to the effect that she was in a position to manage the study requirements (see paragraph 42 above), and there is no evidence of her physical inability to study or lack of resources to undertake the necessary course work.
Although the findings of the Tribunal are related to the requirements of the original units of study in which the Applicant was enrolled, there is nothing to suggest that exactly the same circumstances and findings would attach to those later units to which the Applicant transferred.
The evidence presented to the Tribunal by the Applicant and her husband made it clear that the Applicant has been able to develop a successful career within the recruitment industry and that this was the result of her being able to undertake stable employment, accept mentoring from experienced industry practitioners and progress to leadership of her own team. At no stage was it suggested that any of the difficulties which the Applicant claims inhibited her ability to study or complete course units prevented her from applying herself to the learning processes and development of her career.
CONCLUSION
Taking into account all of the factors advanced by the Applicant, the Tribunal cannot come to the conclusion that it was, in all the circumstances, genuinely impracticable for her to complete the necessary study requirements within the prescribed study periods.
Although the Applicant’s circumstances are such that she is able to satisfy the requirements of subclauses (a) and (b) of clause 48 of Schedule 1A to the Act they are not sufficient to demonstrate that she also satisfies the requirements of subclause (c).
In not satisfying all of the requirements of clause 48, the Applicant is thus not able to satisfy all of the requirements of subclause 46(2) of Schedule 1A to the Act and cannot, as a result, require or compel the Respondent to re-credit her VET FEE-HELP balance.
DECISION
The decision under review is affirmed.
I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..............................[sgd]..........................................
Associate
Dated: 9 March 2021
Date of hearing: 1 February 2021 Date final submissions received: 5 February 2021 Applicant: Self-represented Solicitors for the Respondent: Ms K Ervin, Clayton Utz
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