Baird and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 266
•22 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 266
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4454
GENERAL ADMINISTRATIVE DIVISION ) Re MATTHEW BAIRD Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date22 April 2009
PlaceMelbourne
Decision The decision under review is affirmed.
(Sgd) John Handley
Senior Member
HIGHER EDUCATION – applicant enrolled in a course with a higher education provider – intended to withdraw but application not completed before census date – fee-help liability incurred – entitled to re‑credit if circumstances were special – impact of his circumstances not experienced after census date – Ministerial Guidelines – decision affirmed
Higher Education Support Act 2003 s 79‑5, 79‑10, s 104‑1 s 104‑25, s 104‑30, and s 238‑10
Guidelines For Student Learning Entitlement
REASONS FOR DECISION
22 April 2009 Mr John Handley, Senior Member 1. Mr Baird, the applicant in these proceedings, applies to review a reviewable decision made on 20 August 2008 by the Director of Student Administration at Deakin University. The decision then made was not to re-credit the applicant's FEE-HELP balance.
2. FEE-HELP is monetary assistance requested by a student of higher education and payable by the Commonwealth to fund units of study. One of the qualifying criteria for FEE-HELP assistance is the enrolment of a student before the census date for the unit or units of study. If a student withdraws from the unit or units of study there may be an entitlement to re-credit the FEE-HELP balance by the amount of the FEE-HELP assistance (refer s 104‑1 and 104‑25 of the Higher Education Support Act 2003 – the Act).
3. In the present application, the applicant was enrolled in units of study at Deakin University in the first semester of 2008. He withdrew from the units of study after the census date. He has applied to re-credit his FEE-HELP balance by the amount of FEE-HELP assistance that was made available to him. He asserts that his circumstances are special. The respondent has taken a contrary view having regard to the reviewable decision made by an officer of Deakin University and it is the decision of that officer that is challenged by the applicant in these proceedings.
4. Relevantly, s 104-25 of the Act is in the following terms.
104-25 Main case of re-crediting a person’s FEE-HELP balance
(1A)If section 104-42 applies to re-credit a person’s *FEE-HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person has received for a unit of study, then this section does not apply in relation to that unit.
(1)A higher education provider must, on the *Secretary’s behalf, re-credit a person’s *FEE-HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if:
(a)the person has been enrolled in the unit with the provider; and
(aa)access to the unit was not provided by *Open Universities Australia; 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 104-30); 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 section 104-35; 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.
5. Section 104-30 of the Act describes the circumstances which are special for the purposes of s 104-25 (1) (c). That section relevantly is reproduced below.
104-30 Special circumstances
(1)For the purposes of paragraph 104-25(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 in the period during which the person undertook, or was to undertake the unit.
(2)If the Student Learning Entitlement Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 79-5(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Note:The matters referred to in paragraphs 79-5(1)(a), (b) and (c) (which relate to re-crediting of Student Learning Entitlement) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.
(3)For the purposes of paragraph 104-25(2)(c), special circumstances apply to the person if and only if *Open Universities Australia 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 in the period during which the person undertook, or was to undertake, the unit.
6. Ministerial guidelines have been published under the hand of a former Minister for Education, Science and Training in July 2004 entitled Guidelines For Student Learning Entitlement and which have been made pursuant to s 238‑10 of the Act. Relevantly Chapter 5 refers to special circumstances. Whilst the Guidelines at paragraph 5.1.1 refer to s 79‑5 of the Act (which refers to Student Learning Entitlements) a note appended to s 79‑10 of the Act record that the Guidelines made for the purposes of that section also have effect for the purposes of s 104‑30. The relevant parts of Chapter 5 of the Guidelines are as follows:
5.1 PURPOSE
5.1.1The 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
5.5.1The 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.
5.10CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
5.10.1The 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.
7. The hearing of this application was convened in Melbourne on 31 March 2009. The applicant appeared unrepresented. The respondent Minister was represented by Ms Miller. The applicant gave evidence. Neither party called witnesses. A number of documents were referred to in evidence and will be identified in these reasons.
the evidence
8. The applicant obtained an undergraduate degree in Landscape Design from Royal Melbourne Institute of Technology in 1992. Thereafter he obtained employment as a lecturer and tutor in higher education institutions in Victoria and New South Wales. In recent years he has been self-employed as an Architectural Draftsman. He has also been employed, as a sessional lecturer and tutor at the Deakin University.
9. In 2007 he enrolled as a student in the Master of Architecture (Practice) Post Graduate Degree program. He obtained a deferral from commencement of the program until the first semester of 2008. The applicant said he intended to undertake that study because he believed that it would permit him to obtain accreditation with the Board of Architects. He said accreditation with the Board would enhance his reputation and also meet the aspirations of Deakin University who were expressing a preference in having lecturers and tutors with broad academic and industry recognized qualifications. However, over the summer vacation between November 2007 and February 2008, he learnt that the units of study would not permit him to become accredited with the Board of Architects. He then decided to withdraw from the course.
10. During the summer vacation the applicant was also extensively involved in caring for his elderly parents. His mother suffered dementia and had previously had treatment for bowel cancer. His father, who was his mother's primary carer, also suffered ill health and it would appear that he was no longer able to care for his wife. The applicant said he was the only sibling available to care for his parents who, despite qualifying for aged care assistance in their own home, were provided with a part time cleaner only funded by the Department of Veterans' Affairs. The applicant produced a number of documents referring to the clinical history of his mother's treatment and spoke at length of the extent of his care and commitment to them.
11. The applicant learnt during the summer vacation that he would need to withdraw from the course before the census date of 31 March 2008 but did acknowledge that he did not understand the significance of that date. He said he understood the census date to be the occasion where enrolment and selection of subjects should be confirmed with the University. He said he did not understand that withdrawal before that date might avoid a FEE‑HELP liability.
12. The applicant said the Student Enrolment Officer, the person responsible for completing written withdrawal notifications, was not available until the beginning of March 2008. He said he attempted to obtain an appointment with her but was told that she was heavily committed to dealing with a number of first year students and an appointment in March was not possible. Additionally the applicant said he was due to commence giving lectures in the third week of March at which time he would have returned from caring for his parents to the Deakin Campus. He intended at that time to consult with the Student Enrolment Officer or at least bring to her attention that he intended to withdraw from the course. However he was advised that his lectures would not commence until early April. He then decided to continue to remain caring for his parents and did not return to the Deakin Campus until April. By that stage the census date had passed.
conclusions and reasons for decision
13. The requirement to find whether the applicant's circumstances were special, as dictated by the provisions of s 104‑30, has caused me to conclude for the reasons which follow that the decision under review must be affirmed.
14. The conjunctive construction of that section requires that all three parts of sub-section (1) must be satisfied.
15. Sub-section 1(a) dictates that a circumstance will be special if it was beyond the person's control. The meaning of that expression is to be found at paragraph 5.5.1 of the Ministerial Guidelines which refer to circumstances 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. At paragraph 5.5.5 those circumstances must be unusual, uncommon or abnormal.
16. I accept that the applicant was heavily committed to the care of his parents which required him to be away from home. He was distracted from giving proper attention to the requirements for withdrawal from the course before the census date. I accept that he made attempts to have an appointment with the Student Enrolment Officer and was frustrated in his attempts to do so. However, the care of parents by a sibling could not be regarded as being unusual, uncommon or abnormal. Additionally, the Student Handbook at paragraph 7.8 (of which the applicant acknowledged he had a copy) records that cancellation of a request for FEE‑HELP assistance or withdrawal of enrolment must occur before the census date, failing which a debt will be incurred. The Deakin University website under the link important dates in 2007‑2008 records that Monday 31 March 2008 was the last day to withdraw from semester one units . . . Whilst the applicant understood that there was a census date it would appear that he had a misunderstanding as to its significance. Nonetheless he did make attempts to withdraw before 31 March 2008 and despite his frustration in not obtaining an appointment with the Enrolment Officer, because he was unable to withdraw online, he could have sent a letter or email or some other communication bringing to the attention of relevant persons his intention to withdraw and his inability to obtain an appointment before 31 March 2008. Communication by that type would not have been beyond (his) control.
17. Sub-section (1)(b) of s 104‑30 cannot be satisfied by the applicant because it refers to circumstances which do not make their full impact on the person until on or after the census date. . . All of the circumstances relied upon by the applicant occurred before the census date. His difficulty with computer access, his inability to obtain an appointment with the Student Enrolment Officer, his learning of the attitude of the Board of Architects to the subjects he intended to study and the care of his parents all occurred well in advance of 31 March 2008 (the census date). The full impact of those circumstances was well known to and experienced by the applicant over the summer recess.
18. The remaining part of s 104‑30 is subsection (1)(c) and it contemplates difficulty students have either in commencing or completing study. It refers to circumstances which are special if a student would find it impracticable . . . to complete the requirements for the unit in the period during which the person undertook or was to undertake the unit. It would not be difficult to conceive circumstances such as personal illness or other event which would cause a person to be unable to continue to study (if the course had commenced) or be unable to commence the course (if those circumstances occurred, not having withdrawn, after the census date and before study commenced). To extend that analysis it may be that if the applicant had not withdrawn and the circumstances which confronted his parents occurred on or after the census date it may be that it would have been impracticable for him to complete the requirements of the course or to commence it. This sub-section refers to the circumstances confronting a student who is about to commence or is actually studying. It does not refer to students who have not commenced to study, who intend to withdraw but have not done so before the census date.
19. In letters written by the applicant to Deakin University he sought consideration from the primary decision‑maker and the review officer, having regard to his period of service as an employee, the frequency of his pro bono service and his frustration in attempting to access online services. At the hearing he also expressed his frustration because he was of the belief that a discretion was available under the legislation with respect to a person's circumstances concerning withdrawal. He acknowledged that the relevant parts of s 104‑30 were directed elsewhere.
20. The provisions of s 104‑30 are rigid, all parts must be satisfied, and the intention of the section is directed towards intended or actual study. It is not concerned with circumstances surrounding an intention to withdraw but not doing so before the census date.
21. In all of the circumstances the decision under review must be affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member
Signed: Grace Carney Personal Assistant
Date of Hearing 31 March 2009
Date of Decision 22 April 2009
Applicant Self Represented
Solicitor for the Respondent Ms K Miller, Australian Government Solicitor
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