Balfour and Department of Education, Training and Youth Affairs - [2000] AATA 411

DECISION AND REASONS FOR DECISION [2000] AATA 411

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1361

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DAVID GEORGE BALFOUR
  Applicant
           And    THE SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS
  Respondent

DECISION

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

Date29 May 2000
PlaceMelbourne

Decision      The Tribunal affirms the decision under.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
HIGHER EDUCATION CONTRIBUTION SCHEME ("HECS") – Application for remission of debt – whether withdrawal from course on or before census date – whether applicant confirmed with RMIT that request for withdrawal had been received and actioned.
Words and Phrases
Higher Education Funding Act 1988, ss. 106J; 106L; 106MA
Moran v Secretary, Department of Employment, Education & Training (1990) 13 AAR 7

REASONS FOR DECISION

29 May 2000 Mr B.G. Gibbs, AM, Senior Member
Introduction

This is an application by David George Balfour for review of a reviewable decision made on 13 October 1999 by a delegate of the respondent.
The reviewable decision was made following review of an earlier decision by a delegate, dated 12 August 1999.
The decision made on 12 August 1999 was in respect of an application by Mr Balfour dated 27 July 1999, for remission of a Higher Education Contribution Scheme ("HECS") debt for four subjects in first semester 1999 under section 106L of the Higher Education Funding Act 1988 ("the Act").
Representation
At the hearing before this Tribunal Mr Balfour was represented by his mother, Mrs Ruth Balfour.
Mr P. Kouris, of Counsel, appeared on behalf of the respondent.
Witnesses
Mr Balfour gave evidence at the hearing. No other witnesses were called.
Material
Material before the Tribunal included documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to which it shall be necessary to refer, was also before the Tribunal during the hearing.
Background
Mr Balfour applied for and was offered a place at RMIT for the Bachelor of Applied Science Course in Psychology, in 1999.
As a result of second round offers, Mr Balfour subsequently accepted a place with the Bachelor of Arts (Architecture) Course.
Mr Balfour was posted a confirmation of enrolment and invoice regarding the Bachelor of Applied Science Course with attachments (sent on 1 February 1999), and a confirmation of enrolment and invoice regarding the Bachelor of Architecture Course with attachments (sent 16 February 1999).
Mr Balfour asserts that on 25 February 1999, he cancelled his enrolment in Applied Science by virtue of a letter which he posted bearing that date, addressed to the Faculty of Applied Science.
On 2 July 1999, Ms Wendy Fleming, Office Manager at the RMIT Bundoora Campus, advised Mr Balfour that she could find no record of having received Mr Balfour's letter dated 25 February 1999, cancelling his enrolment in Applied Science.
It is understood that Mr Balfour had in fact received a separate HEC's assessment for his Applied Science Course in or about March 1999. However, as he was overseas competing in a sporting tour, he was not alerted to this additional HEC's payment for two courses, until after his return on 18 April 1999, when the census cut-off date had elapsed.
Contentions of the Respondent
The respondent contends as follows:
(a)That Mr Balfour did not withdraw from the Applied Science Course on or before the census date;
(b)In the alternative, if Mr Balfour had requested a withdrawal of his course of 25 February 1999, which is not admitted, he did not confirm with RMIT that his request for withdrawal had been received and actioned;
(c)That there are no special circumstances which would justify a waiver of the whole or part of the HEC's debt dated 10 April 2000.

Further Review Under Section 106MA of the Act

In a letter dated 22 March 2000 Ms Stella Morahan, Director, Private Funding Section, Higher Education Branch, Department of Education, Training and Youth Affairs, informed Mr Balfour that on the basis of additional documentation that he, Mr Balfour, had provided to this Tribunal, the delegate of the respondent had reconsidered his case under section 106MA of the Act, and had decided not to remit his first semester 1999 HEC's debt, for the following reasons:
"Mr Balfour has provided a Statutory Declaration declaring that on 26 February 1999 he advised RMIT in writing of his intention to withdraw from the Bachelor of Applied Science (Psychology), that he also cancelled his enrolment via the VTAC phone service and that he was out of Australia until 18 April 1999. Mr Balfour has previously provided an unsigned copy of a letter he claims to have sent to RMIT. In his statement Mr Balfour claims that he relied on the postal service and that he was out of the country from 30 March 1999. Mr Balfour also claimed that when he received two statements from RMIT, he did inquired (sic) but claims he was told to ignore the information as it was probably a mistake.
VTAC has confirmed that its Infoline and Handbook advises students that acceptance of a second round offer automatically lapses a first round offer but does inform students that they must advise the university of their first round offer, in writing, that they are withdrawing from that course.
RMIT has advised the Department that it sent a 'Confirmation of Enrolment and Invoice' (statement no 2) for the Bachelor of Applied Science (Psychology) to Mr Balfour on 1 February 1999 with attachments A and B. On 16 February 1999, it sent him a 'Confirmation of Enrolment and Invoice' (statement no 2) for the Bachelor of Architecture also with attachments A and B. Attachment A: Important Information – provides information on checking enrolment details, how to make changes to enrolment details as well as payment information. Attachment B: Save your money – avoid the HECS nasties! – describes two common situations where students could pay for a course or units they did not undertake.
RMIT has also confirmed that it is unlikely that staff in either faculty would have provided Mr Balfour with incorrect advice. Faculty staff confirmed that they would not advise a student to ignore confirmation of enrolment statements.
The only evidence provided by Mr Balfour that he wrote to RMIT to withdraw from the Bachelor of Applied Science (Psychology) is his Statutory Declaration. This document does not indicate the address to which he posted the letter. While it is reasonable to assume that a letter posted to the correct address with the correct postage will be received by the addressee, it is not clear that Mr Balfour posted his letter correctly, nor is it clear why Mr Balfour did not follow up with RMIT to ensure that his letter had been received. While Mr Balfour claims he approached RMIT about receiving two confirmation of enrolments, these were sent before he claims to have written to the University withdrawing from the Bachelor of Applied Science (Psychology). Mr Balfour was in possession of several pieces of information advising him of the need to ensure his enrolment was correct and the consequences of incorrect enrolment. Further Mr Balfour's letter sought a response from RMIT regarding his withdrawal and a lack of response from RMIT should have alerted him to a potential problem. Mr Balfour is an on campus student and could have readily checked his enrolment situation with his faculty student administration office prior to departing Australia on 30 March 1999.
On the basis of all the evidence provided, it appears that Mr Balfour's circumstances were within his control. Although he may have believed that he had acted correctly in cancelling his enrolment in the Bachelor of Applied Science (Psychology), the lack of response from RMIT should have concerned him sufficiently to follow up with his faculty student administration office before he left Australia on 30 March 1999, as he would have been aware that the final date for enrolment changes was 31 March 1999."

The Law

Section 106J of the Act states as follows:
"106J(1) When the Commonwealth under section 57:
(a) makes a loan to a person; and
(b)uses the amount lent to make a payment in discharge of the person's liability to pay a contribution in respect of a course of study in respect of a semester;
the person incurs an HEC semester debt to the Commonwealth equal to the amount of the loan.
(2) The HEC semester debt is taken to have been incurred immediately after the census date in respect of the course of study in respect of the semester, whether or not the Commonwealth has made a payment to the institution in respect of the contribution."
Subsections 106L(1), (2) and (3) of the Act state as follows:
"106L(1) The Secretary may, in writing, remit the whole or part of a person's HEC semester debt if:
(a)the person has not completed the course requirements for his or her course of study in respect of a semester during the semester or during the year in which the semester occurred; and
(b)the Secretary is satisfied that special circumstances apply to the person (see subsection (3)); and
(c)the person applies in writing to the Secretary for remission of the debt within 12 months after the person's withdrawal day in relation to a unit in the person's course of study for the semester (see subsection (3B)).
(2) The Secretary may, in writing, remit the whole or part of a person's OL study period debt if:
(a)the person has not completed one or more of the units of study for which he or she was enrolled for the study period; and
(b)the Secretary is satisfied that special circumstances apply to the person (see subsection (3)); and
(c)the person applies in writing to the Secretary for remission of the debt within 12 months after the person's withdrawal day in relation to a unit of study in which the person was enrolled for the study period (see subsection (3B)).
(3) For the purposes of this section, special circumstances, in relation to a person, include circumstances that the Secretary is satisfied:
(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 course of study for the semester or the study period (as the case requires); and
(c)make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs, or the units of study for which he or she was enrolled for the study period (as the case requires)."

Booklet

Information on HECS and remission procedures is outlined in a booklet "HECS : Your Questions Answered", issued to all students upon enrolment. The booklet states the procedures to be followed by students if they accept more than one place at the same institution. It is the responsibility of the students to be aware of the procedures for enrolment and withdrawal from a University. A lack of knowledge of the procedures is not considered to be beyond the students' control.
Confirmation of Enrolment and Invoice
As indicated, in her letter to Mr Balfour dated 22 March 2000, the Director, Private Funding Section, Higher Education Funding Branch states that the RMIT has advised the Department that it sent a "Confirmation of Enrolment and Invoice" for the Bachelor of Applied Science (Psychology) Course to Mr Balfour on 1 February 1999, with attachments A and B, and that on 16 February 1999 it sent him a "Confirmation of Enrolment and Invoice (statement number 2), for the Bachelor of Architecture Course, also with attachments A and B. Attachment A: "Important Information", provides information on checking enrolment details and how to make changes to enrolment details, as well as payment information. Attachment B: "Save Your Money – Avoid the HECS Nasties!", describes two common situations where students could pay for a course or units they did not undertake.
Admissions
In a "To Whom It May Concern" statement dated 13 May 1999, addressed to Student Administration, Mr Balfour stated in part as follows:
"At the beginning of this year I accepted a first round place in the Bachelor of Applied Science, Psychology, at the Bundoora Campus of R.M.I.T. At a later date, in the second round of offers, I accepted a place in the Bachelor of Architecture. When I accepted the place in the Bachelor of Architecture, the computerised voice on the telephone told me that this would automatically cancel any previous offers that I had accepted. It also said that I should write a letter to the Faculty of Applied Science at Bundoora to officially cancel my position in the course, and so I did."
In giving his reasons for decision not to remit the debt, the delegate of the respondent observed that Mr Balfour signed a "Payment Options Declaration" form, declaring that he had read the HECS information booklet, and that he was aware of the responsibilities under the Scheme. It is noted that Chapter 5 of the booklet sets out what happens where withdrawal occurs before the census date.
As stated in paragraph 12 above, Ms Wendy Fleming, RMIT Bundoora Campus, Office Manager, advised Mr Balfour by letter dated 2 July 1999, that she could find no record of having received his letter dated 25 February 1999, cancelling his enrolment in the Bachelor of Applied Science (Psychology) Course.
Oral Evidence
It is noted that in conducting the reconsideration under section 106MA of the Act, the delegate stated in part as follows:
"VTAC has confirmed that its Infoline and Handbook advises students that acceptance of a second round offer automatically lapses a first round offer but does inform students that they must advise the university of their first round offer, in writing, that they are withdrawing from that course."
Mr Balfour said in evidence that in compliance with the requirement stated on the Infoline (and in the booklet), he cancelled his enrolment in the Bachelor of Applied Science (Psychology) Course by letter dated 25 February 1999, being a letter which he asserted was posted on that date and addressed to the Faculty of Applied Science.
Mr Balfour said it was his belief that the purpose of his letter was to affirm, and was secondary to, what he had said on the (computer voice) Infoline.
Mr Balfour confirmed that he wrote only the one letter and that he knew that it was important it be received, otherwise a debt would be charged. He further confirmed that even after he received two lots of invoices he did not check with anyone to establish whether his letter had been received. This was "because I was under the impression, of course, the mail service would get through".
Mr Balfour said that after he received the two confirmation of enrolments he went to Student Administration, where he asserts that there had "probably" been a mistake which would "probably be fixed".
When asked why he did not then contact the Department of Applied Science, Mr Balfour said that he telephoned Ms Wendy Fleming at RMIT Bundoora who then contacted the Department of Applied Science.
Mr Balfour confirmed that prior to the census date no one had informed him his letter had been received. Nevertheless he maintained that, at the time, he was under the impression his letter would "get through". This was two weeks after he had posted the letter and only some four days before he was due to depart for overseas.
Findings
From the material before me I find as follows:
(a)That Mr Balfour applied for and was offered a place at RMIT for the Bachelor of Applied Science (Psychology) Course in 1999;
(b)That as a result of second round offers, he subsequently accepted a place with the Bachelor of Arts (Architecture) Course;
(c)That when he accepted the place in the Bachelor of Arts (Architecture) Course he was informed by Infoline (computerised voice) that acceptance of a second round offer automatically lapses a first round offer, and that he must advise the University of his first round offer, in writing, that he was withdrawing from that course;
(d)That the Department sent a "Confirmation of Enrolment and Invoice" (statement number 2) for the Bachelor of Applied Science (Psychology) to him on 1 February 1999, with attachments A and B;
(e)That the Department sent a "Confirmation of Enrolment and Invoice" (statement number 2) for the Bachelor of Architecture on 16 February 1999, also with attachments A and B;
(f)That the only evidence provided by Mr Balfour that he wrote to RMIT to withdraw from the Bachelor of Applied Science (Psychology) Course is a Statutory Declaration dated 13 May 1999;
(g)That the Statutory Declaration does not state the address to which he posted his letter;
(h)That Mr Balfour did not confirm with RMIT that his request for withdrawal had been received and actioned. This even though his letter sought a response from RMIT concerning his withdrawal and a lack of response from RMIT should have alerted him to a potential problem.

Special Circumstances

As set out in paragraph 17 above, section 106L of the Act provides the Secretary with authority to remit the whole or part of a person's HEC semester debt if, inter alia, the Secretary is satisfied that special circumstances apply to the person. As also indicated, the section further provides that "special circumstances" in relation to a person, include circumstances that the Secretary is satisfied:
(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 course of study for the semester.
I find that special circumstances do not apply to Mr Balfour. The situation in which he found himself was neither unusual, uncommon or abnormal, nor was it beyond his control. (Moran v Secretary, Department of Employment, Education and Training (1990) 13 AAR 7.)
Decision
The decision of the Tribunal will be that the decision under review is affirmed. As indicated, the decision under review is the decision of the delegate of the respondent made after conducting a review under section 106MA of the Act.
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:.....................................................................................
  Personal Assistant
Date/s of Hearing  14/4/2000
Date of Decision  29/5/2000
Counsel for the Applicant        Mrs R. Balfour (mother)
Solicitor for the Applicant         -
Counsel for the Respondent    Mr P. Kouris
Solicitor for the Respondent    Australian Government Solicitor