Bell and Secretary, Department of Education
[2024] AATA 3007
•26 August 2024
Bell and Secretary, Department of Education [2024] AATA 3007 (26 August 2024)
Division:General Division
File Number:2022/6712
Re:Mr Slade Bell
APPLICANT
AndSecretary, Department of Education
RESPONDENT
Tribunal:Senior Member B. Pola
Date:26 August 2024
Place:Brisbane
DECISION
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the respondent dated 21 July 2022.
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Senior Member B. Pola
CATCHWORDS
HIGHER EDUCATION SUPPORT – FEE-HELP – re-crediting a HELP balance – remission of debt – special circumstances – whether the applicant’s circumstances were beyond their control – whether the applicant’s circumstances made their full impact on or after the census date – whether the applicant’s circumstances made it impracticable to complete the requirements – medical evidence – Tribunal does not find special circumstances – decision affirmed
LEGISLATION
Administrative Appeals Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
Higher Education Support (Administration) Guidelines 2022 (Cth)CASES
Georgiou and Secretary, Department of Education and Training [2019] AATA 170.
Montenegro v Secretary, Department of Education [2020] FCAFC 210.
Peters and Secretary, Department of Education, Skills and Employment [2021] AATA 3800.
Sadek and Secretary Department of Education [2017] AATA 1399.
Tralongo and Secretary, Department of Education [2016] AATA 393.
Ullah and Secretary, Department of Education and Training [2018] AATA 2159.REASONS FOR DECISION
Senior Member B. Pola
26 August 2024
BACKGROUND
The applicant, Mr Slade Bell, enrolled in the following three units of study as part of a Master of Laws, which he is currently undertaking with the University of Southern Queensland (herein referred to as “USQ”), for semester two of 2021[1]:
(a)LAW8750 – Commercial Law Project;
(b)LAW8751 – Comparative Law Project; and
(c)LAW8754 – Public Law Project.
[1] Exhibit TR1, T23, page 78.
Upon enrolment in his studies with USQ, the applicant had access to relevant documentation setting out USQ’s enrolment policies, procedures and obligations with respect to assistance provided through the Higher Education Support Act 2003 (herein referred to as the “Act”), by way of a FEE-HELP loan[2].The Tribunal notes the applicant explicitly declared he had read the FEE-HELP information booklet when submitting his request for a FEE-HELP loan, in his enrolment declaration with USQ. Further, the applicant declared that he had read and agreed with the relevant statutes rules and regulations which apply to the applicant in electing to undertake his studies with USQ[3].
[2] Exhibit TR1, T27, pages 164 to 168; T4, pages 20 to 22; T28, pages 169 to 189; T29, page 190; T30, pages[3] Exhibit TR1, T4, pages 20 to 22; T29, page 190; and T31, pages 214 to 247.
The applicant received a statement from USQ on 12 August 2021, indicating that he had incurred a total FEE-HELP debt of $9,690 for the three units of study[4].
[4] Exhibit TR1, T5, page 23.
On 27 January 2022, the applicant lodged an application for the re-crediting of his FEE-HELP balance for the three units of study he had enrolled in during semester two of 2021, pursuant to subsection 104-25(1) of the Act[5].
[5] Exhibit TR1, T14, pages 50 to 56.
On 14 March 2022, USQ informed the applicant of their decision to refuse his application of removal of his FEE-HELP debt for his units of study in semester two of 2021[6]. On 8 April 2022, the applicant requested an internal review of this decision[7].
[6] Exhibit TR1, T15, pages 57 to 59.
[7] Exhibit TR1, T17, pages 66 to 68.
On 21 July 2022, USQ wrote to the applicant to advise him that the decision to refuse his application for removal of his FEE-HELP debt for his units of study in semester two of 2021 had been affirmed[8].
[8] Exhibit TR1, T18, pages 69 to 71.
On 17 August 2022, the applicant applied to the Administrative Appeals Tribunal (herein referred to as the “Tribunal”) for review of that decision[9].
[9] Exhibit TR1, T2, pages 4 to 9.
JURISDICTION
Decisions by higher education providers regarding a refusal to re-credit a person’s FEE-HELP debt, pursuant to subsection 104-25(1) of the Act are reviewable decisions, pursuant to subsection 206-1 (Item 2) of the Act.
Applications can be made to the Tribunal under subsection 212-1 of the Act, for the review of a “reviewable decision” that has been confirmed, varied, or set aside, pursuant to subsections 209-5 or 209-10 of the Act.
The original decision was made on 14 March 2022. A request for an internal review of this decision by the respondent was made by the applicant, and on 21 July 2022, the original decision was affirmed. It therefore follows that the Tribunal has jurisdiction to review this application, pursuant to subsection 212-1 of the Act.
ISSUE
The issue before the Tribunal for consideration is whether subsection 104-25(1) of the Act applies to the applicant. That is, whether USQ, on behalf of the Secretary for the Department of Education, must re-credit the applicant’s FEE-HELP balance with an amount equal to the amount of FEE-HELP assistance he received for the units of study he enrolled in during semester two of 2021.
This requires the Tribunal to consider whether “special circumstances” apply to the applicant, in accordance with subsection 104-25(1)(c) of the Act, whilst also having regard to the Higher Education Support (Administration) Guidelines 2022 (herein referred to as the “Administration Guidelines”).
LEGISLATIVE FRAMEWORK
The legislation relevant to the determination of the application before the Tribunal includes:
(i)The Higher Education Support Act 2003 (or the “Act”);
(ii)The Higher Education Support (Administration) Guidelines 2022 (or the “Administration Guidelines”), which are Ministerial Guidelines issued pursuant to subsection 238-10 of the Act, and form a substitute regime to which decision makers must comply, and are integral to the statutory framework under which administrative decision-makers’ powers are conferred[10]; and
(iii)The Administrative Appeals Act 1975 (herein referred to as the “AAT Act”).
[10] Refer: Montenegro v Secretary, Department of Education [2020] FCAFC 210 at [64].
Section 101-1 of the Act describes how FEE-HELP assistance is provided to individuals:
“… A student may be entitled to FEE‑HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met. The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a higher education provider or, if the student accesses units through Open Universities Australia, that body, to discharge the student’s liability to pay his or her tuition fees…”
Subsection 104-25(1) of the Act provides for the circumstances in which a higher education provider must re-credit a person’s HELP balance with an equal amount of FEE-HELP assistance that a person receives for a unit of study:
“… Main case of re-crediting a person’s HELP balance in relation to FEE-HELP assistance
(1) A higher education provider must, on the *Secretary’s behalf, re-credit a person’s *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 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….”
Subsection 104-30(1) of the Act sets out the meaning of special circumstances, referred to in subsection 104-25(1)(c) of the Act:
“…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 Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36‑21(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 36‑21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS‑HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section…”
With respect to the application of subsection 104-30(1), the Administration Guidelines provide further clarification as to what constitutes special circumstances. The relevant provisions are transposed:
“…Part 3 –Special circumstances
12 Circumstances beyond a person’s control
(1) For the purposes of paragraphs 36-13(3)(a) and 36-21(1)(a) of the Act, a higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which the provider reasonably considers is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
(2) The situation referred to in subsection (1) must be unusual, uncommon or abnormal.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
13 Circumstances that did not make their full impact until on or after the census date
(1) For the purposes of paragraphs 36-13(3)(b) and 36-21(1)(b) of the Act, a 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;
(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.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
14 Circumstances that make it impracticable for the person to complete the requirements
(1) For the purposes of paragraphs 36-13(3)(c) and 36-21(1)(c) of the Act, a higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study if the person undertook, or was to undertake, the unit in the following kinds of circumstances:
(a) medical circumstances—for example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying;
(b) family or personal circumstances—for example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies;
(c) employment related circumstances—for example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or
(d) course related circumstances—for example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.
(2) The requirements for a unit of study referred to in subsection (1) are that the person:
(a) undertakes the necessary private study required, or attends sufficient lectures or tutorials or meets other compulsory attendance requirements in order to meet their compulsory course requirements;
(b) completes the required assessable work;
(c) sits the required examinations; or
(d) completes any other course requirements.
Note: Circumstances specified in this provision also apply
CONSIDERATION
This application was heard in Brisbane on 10 July 2024. The hearing was conducted by telephone, as permitted by section 33A of the AAT Act. The Tribunal heard oral submissions from the applicant (who was self-represented), and the respondent’s representative (Mr Ben Dube of Sparke Helmore), and additionally considered submitted evidence outlined in the Exhibit Register, contained in Annexure 1 of these reasons. The Tribunal notes the respondent also had a non-participating observer from the Department of Education, Ms Jennifer McRae.
As stated in earlier reasons of this decision, the issue for consideration is whether subsection 104-25(1)(c) of the Act applies to the applicant: that is, whether special circumstances apply to the applicant, in accordance with subsection 104-25(1)(c) of the Act. The respondent accepts the remaining provisions of subsection 104-25(1) are satisfied by the applicant[11].
Applicant’s claimed circumstances
[11] Exhibit R2, paragraphs 4.4 to 4.11, page 4; and paragraphs 4.34 to 5.1, page 10.
The applicant, through his written and oral submissions to this Tribunal, has advanced one category of circumstance which he claims impacted upon his ability to withdraw from his units of study prior to the census date, and this relates to medical circumstances[12]. The main contentions of the applicant with respect to his medical circumstances and the impact of this on his inability to withdraw from his units of study prior to the census date are that[13]:
(i)Changing medications was the primary cause of his inability to continue with his studies; and
(ii)His mental health condition had been misdiagnosed at the time he was trying to complete the relevant units of study (with the applicant submitting he had recently been diagnosed with ADHD[14]) and had received differing medical diagnosis and treatment plans for his mental health condition during the relevant period of study.
Applicant’s engagement with his enrolled units of study
[12] Exhibits A3 and A5.
[13] Exhibits A3 and A5.
[14] Exhibit A5, page 1; (Attention-deficit/hyperactivity disorder or “ADHD”).
As stated in earlier reasons of this decision, the applicant enrolled in three subjects for semester two of 2021, as part of his enrolment in the Master of Laws Program. It is noted that the relevant census date for withdrawal from the units of study was 6 August 2021[15].
[15] Exhibit TR1, T5, page 23.
Records before the Tribunal confirm the applicant sought an extension for assessment items for each of the three subjects in which he had enrolled for the relevant semester. Each unit of study had a research project due on 5 November 2021. On 4 November 2021, records indicate the applicant applied for an extension for each of these assessments, which were granted to 25 January 2022, on the basis of “medical issues”. On each application for an extension (all of which were granted), the applicant stated[16]:
“… Over the course of the semester I have had some serious on going medical issues that did not become apparent until half way through the semester. They have seriously affected my ability to study and undertake the assessment. I have attached three separate medical certificates that state I will be unable to finish my assessment on time…”
[16] Exhibit TR1, T7, pages 25 to 28; T8, pages 29 to 32; and T9, pages 33 to 36.
The applicant submitted three medical certificates from his treating General Practitioner (herein referred to as “GP”) at the time, dated 8 August 2021, 25 August 2021 and 6 October 2021, to accompany the extension requests[17]. In each medical certificate, the applicant’s GP stated that the applicant, “… will be unable to finish the university tasks and assignment on time due to this medical condition…”.
[17] Exhibit TR1, T14, pages 54 to 56.
Records before the Tribunal confirm the applicant received a grade of “Fail – Did not participate” for all three subjects in which he had been enrolled for the relevant semester[18].
Do special circumstances apply?
[18] Exhibit TR1, T20, page 74.
The issue for consideration is whether special circumstances apply to the applicant. That is, whether the applicant has demonstrated to the Tribunal pursuant to section 104-30(1)(a), (b) and (c) of the Act, that for the units of study in question, his circumstances:
(a)were beyond his control; and
(b)did not make their full impact on him until on or after the census date; and
(c)made it impracticable for him to complete the requirements for the units of study in the period during which he undertook or was to undertake the units of study.
Were the circumstances beyond the Applicant’s control?
Part 3 section 12 of the Administration Guidelines (transposed in earlier reasons of this decision) state that circumstances are considered beyond the applicant’s control if a situation occurs which a provider reasonably considers is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible (observing that the situation must be unusual, uncommon or abnormal).
Evidence before the Tribunal confirms the applicant had been receiving treatment for his mental health condition for several years prior to undertaking the relevant units of study, and that this condition was prone to fluctuations. The Tribunal also notes the applicant has been treated for an injury involving his right upper limb after an accident related to an electrocution in June 2016, and a related ongoing pain injury[19]. The Tribunal refers to the following relevant medical evidence:
[19] Exhibit TR2, ST4, page 25.
(a)Medical records of the applicant confirm he has contended with his mental health condition from as early as 2018, with a clinical psychologist reporting the applicant had presented with “… mixed anxious and depressed mood…”, and a suspected, “… history of undiagnosed ADHD…”[20].
(b)In a letter dated 30 May 2018, a clinical psychologist wrote in support of altering the applicant’s examination conditions as part of his studies, as the applicant, “… experienced a significant decline in his mood in recent weeks, including heavy neurovegetative symptoms within the setting of a current severe depressive episode which negatively impacts on his ability to complete his current assessment and exams. His concentration, memory and processing time are affected by his conditions…”[21].
(c)A letter dated 15 January 2019 from a psychiatrist and pain management consultant, diagnosed the applicant with, “… mixed moderate depression anxiety/chronic adjustment difficulties…”, and documented past fluctuations in the applicant’s mental health condition[22]. The psychiatrist went on to recommend the applicant recommence prescription medication to regulate his mood.
(d)On 2 September 2020, the applicant was referred to a psychologist for access to a mental health care plan by a GP [23]. The psychologist, treating the applicant to whom he was referred, documented the outcome of the sessions held with the applicant. Counselling notes from the psychologist on 11 March 2021 document that the applicant had failed to attend his last two scheduled appointments, and that she had intended to notify the applicant’s referring GP.[24] In an undated letter to the referring GP, the psychologist recommended the applicant be seen by a “… clinical psychologist in person for intensive intervention…”[25]. She noted the applicant had failed to engage in the therapy process and had been resistant to therapeutic intervention and strategies which had been discussed in therapy.
(e)On 6 January 2021, a further mental health treatment plan review was initiated by the same referring GP[26].
(f)A medical certificate signed by the applicant’s GP on 13 May 2021 certified the applicant was “unfit for university from 22/04/2021 to 27/05/2021 inclusive”, for the semester prior to the commencement of semester 2 of 2021[27]. During the hearing, the applicant confirmed that his unfitness was a result of a fluctuation in his mental health condition, which is also corroborated by relevant counselling notes.
(g)Within the evidence before the Tribunal are compiled case notes from counselling sessions conducted with the applicant for the period of 26 May 2021 to 5 August 2021[28].
(i)Of note, in a counselling session with the applicant on 10 June 2021, is a record stating the applicant’s mental health continued to deteriorate and that he was suffering panic attacks. The notes also confirmed the applicant had been trialling different medication to manage his mental health condition[29].
(ii)A further case note on 1 July 2021 confirms the applicant had again switched medications to treat his mental health condition[30]. Further, the case note from this date records the applicant informing the counsellor that he was due to commence studies for the next semester in a fortnight, and recorded the applicant stating, “… no way I could study at the moment, well I do feel keen to study again…”[31].
[20] Exhibit TR2, ST4, pages 8 and 9.
[21] Exhibit TR2, ST4, page 19.
[22] Exhibit TR2, ST4, pages 16 to 18.
[23] Exhibit TR2, ST6, page 2.
[24] Exhibit TR2, ST6, page 9.
[25] Exhibit TR2, ST6, page 8.
[26] Exhibit TR2, ST6, page 1.
[27] Exhibit TR2, ST3, page 46.
[28] Exhibit TR2, ST5, pages 1 to 6.
[29] Exhibit TR2, ST5, page 2.
[30] Exhibit TR2, ST5, page 4.
[31] Exhibit TR2, ST5, page 5.
The Tribunal is of the view the medical evidence relating to the applicant’s mental health condition supports a finding that at the time of the applicant’s commencement of studies in semester two of 2021, he suffered a pre-existing mental health condition from which he had suffered past fluctuations.
This Tribunal has made observations in past decisions with respect to findings which relate to applicants who suffer a history of fluctuations in their pre-existing medical condition(s). Part 3 section 12(2) of the Administrative Guidelines stipulate that for a circumstance to be considered beyond a person’s control, the situation referred to in that circumstance must be unusual, uncommon or abnormal. The common approach in past applications has been that such situations cannot be considered unusual, uncommon or abnormal. For the benefit of the applicant, the Tribunal will detail these relevant decisions.
The Tribunal refers to the decision of Tralongo and Secretary, Department of Education[32]:
“… I consider that Ms Tralongo has not satisfied the requirements of special circumstances in section 36-20(1)(d) of the Act. In this regard, as to whether the circumstances were beyond Ms Tralongo’s control, I say that the failure to withdraw by the census date was not beyond her control and that her situation was not unusual or uncommon in the circumstances of the disease having been first diagnosed in March 2008. Any flare up or exacerbation was not unusual or uncommon for Ms Tralongo who had similar flare ups whilst studying in previous semesters. Therefore, Ms Tralongo does not satisfy subsection 36-21(1)(a) with respect to special circumstances…”
[32] [2016] AATA 393 [24].
The Tribunal refers to the decision of Sadek and Secretary Department of Education[33]:
“… I accept that the applicant’s medical conditions were not “within her control”, the applicant has not sufficiently demonstrated how her circumstances as a whole were beyond her control. Given the ongoing nature of her medical conditions over a number of years, the applicant ought to have understood her capacity to undertake the relevant subjects given the reactive and intermittent nature of her mental health and physiological conditions. The fact that the applicant’s medical conditions existed before the relevant census date meant that it was possible for her to withdraw from the Units before the relevant census date. This was within her control…”
[33] [2017] AATA 1399 at [29].
Further, the Tribunal refers to the decision of Peters and Secretary, Department of Education, Skills and Employment, where a similar observation was made[34]:
“… As at the census date of each of the units of study for which he seeks remission of the HECS-HELP debt, the applicant knew that he suffered from a medical condition the symptoms of which may be such as to prevent him from undertaking and completing the unit. He also then knew that the risk of those symptoms doing so was significant, given that:
(a) they had been ongoing and persistent (albeit variable in severity); and
(b) he had already sought (and obtained) remission of the HECS-HELP debt attributable to other units in which he had enrolled but failed to complete due to those symptoms.
Despite knowing these things, the applicant elected to enrol in each relevant unit of study (at a time when, according to the applicant’s evidence at the hearing this proceeding, he was symptomatic) and took no steps to withdraw from it prior to its census date. Having so enrolled and taken no such steps to withdraw, the applicant found himself in a situation where he was seeking to withdraw from the unit of study after its census date due to an inability to complete the unit because of the applicable circumstances...”
[34] [2021] AATA 3800, [59] and [60].
The Tribunal is of the view that the available medical evidence supports a finding that the applicant was in a position to assess whether his mental health condition would impact his studies prior to the census date of 6 August 2021. This finding is supported by counselling notes where the applicant informed the counsellor on 1 July 2021, that there was, "… no way I could study at the moment, well I do feel keen to study again…"[35].
Applicant’s contentions
[35] Exhibit TR2, ST5, page 5.
With respect to the applicant’s contentions relating to the effects of changing his medications on his ability to study, the Tribunal accepts that the effects of the change in the applicant’s medication on him was not within his control. However, the Tribunal is of the view that it was within the control of the applicant to withdraw from his subjects prior to the census date. The applicant’s underlying mental health conditions were long standing – there is evidence that he has suffered from past fluctuations, and the requirements of his study were understood by the applicant prior to his enrolment in the units of study. The Tribunal is of the view this equally applies to the applicant’s contentions with respect to claims that his mental health condition had been misdiagnosed, given the condition has been long standing.
During the course of the hearing, the applicant raised issues with respect to financial difficulties he had faced at the time he had chosen to continue his studies during semester two of 2021, and told the Tribunal had he withdrawn from his subjects, he would have likely lost his Abstudy payments. The Tribunal notes in the evidence before it, the applicant had faced financial hardships in the past in relation to his debts, with a social worker documenting this in file notes dated 24 January 2019 and 23 May 2019[36]. The Tribunal is of the view that the applicant’s contentions with respect to his financial difficulties are not considered unusual, uncommon or abnormal.
[36] Exhibit TR2, ST4, pages 123 and 113.
For the reasons outlined above, I am of the view the applicant’s mental health condition and financial difficulties are not considered unusual, uncommon or abnormal for the purposes of satisfying Part 3, section 12(2) of the Administrative Guidelines. Therefore, the Tribunal finds the applicant does not satisfy subsection 104-30(1)(a) of the Act.
The Tribunal noted, in earlier reasons of this decision, the conjunctive legislative test that must be satisfied for a person to successfully have a higher education provider re-credit their HELP balance with an equal amount to the FEE-HELP assistance that person receives for a unit of study. All limbs in subsection 104-30(1)(a) to (c) must be satisfied in order to meet the test for special circumstances. Although the Tribunal has found the applicant did not meet the first limb of this test, and therefore does not satisfy the legislative provisions with respect to special circumstances, for completeness I will review the remaining limbs of this test.
Did the circumstances make their full impact on or after the census date?
With respect to the application of subsection 104-30(1)(b) of the Act, that is whether the applicant’s circumstances made their full impact on or after the census date, Part 3 section 13 of the Administrative Guidelines state that a 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.
As mentioned in earlier reasons, the census date for the relevant units of study is 6 August 2021[37]. In the present application, the applicant has contended that his medical condition, which he suffered from prior to the census date, worsened after the census date, and has referred to a medical certificate dated 15 March 2022, by his GP[38]:
“… Mr Slade BELL has been suffering from a medical condition that has impacted his ability to study and finish the assignment on time throughout the semester that started on 12/Jul/ 2021 to 12/Nov/2021.
The medical condition worsened on the 18th of August to 12th November.
The impact of the circumstances and condition meant that Slade was unable to focus in private study, research and the completion of academic writing, memory recall was impaired, and cognitive through progress were limited…”
[37] Exhibit TR1, T5, page 23.
[38] Exhibit TR1, T17, page 68.
In submissions before the Tribunal, the respondent has contended that the evidence from the applicant’s GP referred to above should be ascribed little weight in circumstances where it is not corroborated by medical evidence, in particular summonsed records of the clinic of the abovementioned GP, as the summonsed records do not indicate the applicant experienced an exacerbation of his mental health condition/s on or after the census date[39].
[39] Exhibit R2, paragraph 4.21, page 7.
At the hearing, the respondent asked the applicant a general proposition, that when he visits his GP he would report his medical condition at the time, and the GP’s clinical notes would reflect this, to which the applicant agreed.
The Tribunal has reviewed the summonsed medical records of the GP who issued the applicant’s medical certificate of 15 March 2022, and the Tribunal is of the view the summonsed records indicate the applicant experienced an exacerbation in his medical condition prior to the census date[40].
[40] Exhibit TR2, ST3, pages 21 to 112.
This view is supported by a letter dated 29 July 2021 from Queensland Health Acute Care Team for Mental Health and Specialised Services confirming the applicant had been triaged at their clinic, and that his medications had been increased, as a result of his “worsening mood over last months”[41].
[41] Exhibit TR2, ST3, page 12.
The Tribunal also refers to patient notes of 29 July 2021 from the intake review meeting conducted by a consultant psychiatrist from the abovementioned provider, the progress notes from this report stated that the applicant, “…experiences suicidal ideation, low motivation and is experiencing financial difficulties… has completed sessions with private counselling service and they are requesting immediate psychiatric support for medication review…”[42].
[42] Exhibit TR2, ST5, page 14.
The Tribunal’s view is further supported with reference to the compiled case notes from counselling sessions conducted with the applicant for the period of 26 May 2021 to 5 August 2021, detailed in earlier reasons of this decision where the applicant told the counsellor on 1 July 2021 that he, “… Start my next semester in 2 weeks, no way I could study at the moment, well I do feel keen to study again" - he says he feels keen, but doesn’t think he could study…”[43]. The Tribunal is of the view the counselling session notes suggest the applicant was aware of the full effect or magnitude of his condition prior to the census date where he confirmed that his mental health condition had impacted him to an extent that there is “no way” he could commence studies.
[43] Exhibit TR2, ST5, page 5.
For the reasons outlined, the Tribunal is of the view that the corroborative medical evidence supports a finding that the applicant experienced an exacerbation in his pre-existing medical condition prior to the census date. For completeness, the Tribunal is of the view there is no corroborative evidence to suggest the applicant’s financial situation markedly deteriorated before the census date, but worsen after that day; or the full effect or magnitude of his financial situation was such that it did not become apparent until on or after the census date. It is for these reasons the Tribunal is of the view the applicant does not satisfy subsection 104-30(1)(b) of the Act.
Did the circumstances make it impracticable for the Applicant to complete requirements of the units of study in question?
With respect to the application of Part 3 section 14 of the Administration Guidelines, it provides that a higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake the unit, if circumstances such as the following have occurred (relevant to the present application):
(a)“medical circumstances” can be established (for example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying); and
(b)“family or personal circumstance” can be established (for example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies).
With respect to whether circumstances made it ‘impracticable’ to complete study requirements, I refer to Ullah and Secretary, Department of Education and Training[44], where Member Hyman stated:
“… In my view none of the matters canvassed made it impracticable for Mr Ullah to continue his studies. Mr Ullah’s problems with his studies certainly made it more difficult for him to succeed, but they did not make it impracticable to continue, and he acknowledged during the hearing that although internet access in his village was limited, it was not so limited as to make it impossible for him to continue his studies. His loss of employment when he left Pakistan no doubt reduced his income but did not prevent him from studying. His wife’s health, as noted above, did not, on the evidence available to me, change significantly after the census date and so there is no evidence that it had an impact on his ability to study...”
[44] [2018] AATA 2159 at [36].
I also refer to Senior Member A Poljak in Georgiou and Secretary, Department of Education and Training, where they stated the following with respect to “impracticable”[45]:
“… I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. However, while the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of the Units, it is insufficient to establish that the circumstances were such that it was impractical for this to be done. I note that in the letter of Ms Malone she speaks of the applicant’s cognitive difficulties and its impact on her decision-making capabilities; I give this evidence little weight as it is not contemporaneous to when the applicant allegedly withdrew from the Units, or the census date in 2013…”
[45] [2019] AATA 170 at [20].
With respect to the applicant’s medical circumstances, the Administration Guidelines further provide that a person is unable to complete the requirements for units of study if the person is unable to[46]:
(a)undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or
(b)complete the required assessable work; or
(c)sit the required examinations; or
(d)complete any other course requirements.
[46] Part 3, section 14(2) of the Administration Guidelines.
The Tribunal again notes the applicant’s assessment for each of the relevant units of study was originally due on 5 November 2021, and the applicant applied for and was granted an extension for each to 25 January 2022[47]. The Tribunal agrees with the respondent’s contention, and is of the view that the submitted medical evidence from the applicant with respect to his inability to complete his studies, do not indicate the applicant’s medical condition prevented the applicant from completing assessment to 25 January 2022[48].
[47] Exhibit TR1, T7, pages 25 to 28; T8, pages 29 to 32; T9, pages 33 to 36.
[48] Exhibit R2, pages 8 and 9, paragraphs 4.29 and 4.30.
On reflection of the available evidence with respect to the applicant’s medical condition, the Tribunal is of the view that the corroborative evidence suggests that it may have been difficult for the applicant to have undertaken and complete the necessary coursework for his studies. However, the Tribunal is of the view the corroborative evidence does not support a finding where it would have been impracticable for the applicant to complete or undertake the necessary coursework for his studies with respect to the impact of his long standing and fluctuating medical condition.
Similarly, the Tribunal is also of the view that there is a lack of corroborative evidence to support contentions raised by the applicant with respect to a lack of financial support making it impracticable for him to complete the relevant units of study.
For these reasons, the Tribunal is of the view the applicant did not satisfy the third limb of the legislative test, set out in subsection 104-30(1)(c) of the Act.
Summary
As stated in these reasons, for special circumstances to be established, pursuant to subsection 104-30(1) of the Act, all limbs of the legislative test must be satisfied (that is, subsection 104-30(1)(a), (b) and (c) of the Act).
Special circumstances apply to a person where it is established that the circumstances (1) were beyond the person’s control; and (2) did not make their full impact on the person until on or after the census date for the unit of study; and (3) made it impracticable for the person to complete the requirements for the unit during the period which the person undertook or was to undertake the units of study.
The Tribunal has found the applicant did not satisfy any of the relevant limbs in the legislative test set out in subsections 104-30(1)(a), (b) and (c) of the Act. In turn, the Tribunal has found that special circumstances do not apply to the applicant, in accordance with subsection 104-25(1)(c) of the Act.
DECISION
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the respondent dated 21 July 2022.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola.
………[SGD]………
Associate
Date: 26 August 2024
Date of Hearing: 10 July 2024
Applicant: Mr Slade Bell (self-represented)
Respondent: Secretary, Department of Education
Respondent Representative: Mr Ben Dube (Sparke Helmore)
Respondent’s observers: Ms Jennifer McRae (Department of Education) (non-participant)
Annexure 1 – Exhibit Register
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
R1.
Respondent Statement of Facts, Issues and Contentions
R
06/12/2023
R2.
Respondent Amended Statement of Facts, Issues and Contentions
R
20/06/2024
A1.
Dr K Support Letter
A
23/11/2022
23/01/2023
A2.
Second Dr K Support Letter
06/04/2023
14/04/2023
A3.
Applicant Statement
-
14/04/2023
A4.
Dr S Letter
04/11/2021
14/04/2023
A5.
Further Applicant Statement
-
24/05/2024
TR1.
Section 37 T-Documents
-
-
07/12/2022
TR2.
Supplementary Section 37 T-Documents
26/10/2023
TR3.
Further Supplementary Section 37 T-Documents
25/01/2024
194 to 213; and T31, pages 214 to 248.
0
6
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