Benson and Department of Employment, Training and Youth Affairs

[2000] AATA 782

DECISION AND REASONS FOR DECISION [2000] AATA 782

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/95 

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      RICHARD BENSON          
  Applicant
           And    SECRETARY, DEPARTMENT OF EMPLOYMENT, TRAINING AND YOUTH AFFIARS     
  Respondent

DECISION AND ORAL REASONS FOR DECISION

Tribunal       WJF Purcell (Senior Member)      

Date18 August 2000

PlaceBrisbane

Decision      For the reasons given orally at the hearing, the Tribunal is satisfied therefore that there is no reviewable decision, and that this Tribunal has no jurisdiction to entertain the application.            
  ..............................................
  WJF Purcell
  Senior Member
CATCHWORDS
 HECS debt – application for remission of debt required within 15 months – no application received – whether a reviewable decision was made – question of jurisdiction
Higher Education Funding Act 1988 ss 106L(1), 106L(3), 106M(3), 106M(6)

ORAL REASONS FOR DECISION

18 August 2000                  WJF Purcell (Senior Member)                  

1. This matter came on for hearing in relation to the question whether the Tribunal has jurisdiction to entertain an application for the remission of a Higher Education Contribution Scheme (HECS) debt for a Bachelor of Nursing course at the University of South Australia in the first semester of 1996.

2. The evidence before the Tribunal comprised the documents tendered at the Hearing.  The applicant appeared on his own behalf and gave oral evidence.  Mr Belcher appeared for the respondent (the Department).

3. The applicant enrolled in a Bachelor of Nursing course at the Salisbury Campus of the University of South Australia in 1996.  On 7 December 1999 he filled in a "Application for remission of HECS debt in special circumstances", which was received by the Department on 10 December 1999.  He outlined his special circumstances as follows:

   "I was and still am an Assistant Nurse, I've had a big dream to become an (sic) Registered Nurse, but didn't happen.  I have used to live at 2 Linda Drive, Athelstone, South Australia where I was addmited (sic) at University of Nursing – Salisbury Campus – SA.  I have had a breakdown marriage in mid March 1996 and forced to leave the property under death threats by my ex-wife's family.  I was traumatised, scared and lots of debts on my own, leaving where I am with just my clothes and a car still unpaid (Ford Credit Loan).  Just before I left, I have rung up University explaining the situation and I have been told to write a letter to explain this in writing and to post it to them (Administration) as I had not time…"

1. On 10 January 2000 a delegate with the private funding section of the Department, wrote to the applicant informing him that remission of the HECS debt was not possible.  The letter read in part as follows: 

   "Under the provisions of the Higher Education Funding Act 1988 we are unable to consider your application for first semester 1996.  Under the Act, for units of study commenced prior to 1 January 1998, the Secretary or his delegate may consider applications to remit HECS liabilities that are made within three months of the census date for the semester in which the debt was incurred.  Applications received after this period, but within the next twelve months, may also be considered but an applicant would need to demonstrate that special circumstances existed which prevented him or her from making an application within the three month period.
   In your case, you would need to have applied by 1 July 1997 for the Secretary or his delegate to have been able to consider your application for first semester 1996."

1. The applicant applied to this Tribunal on 1 February 2000 for review of that decision.

2. The applicant maintains that due to the breakdown of his marriage in mid-March 1996 he was unable to concentrate, and was so seriously affected, that he withdrew from the Bachelor of Nursing course on about 21 March 1996, by way of letter.  He says that he initially tried to withdraw from the course by telephone, but was advised by University staff that he would need to put his withdrawal in writing.  He had changed address to Le Strange Street, Glenside, South Australia and all mail was re-directed by Australia Post for 12 months.  There is no record of such a letter ever being received at the University. 

3. The applicant submits that he first learnt of the HECS debt when he received his 1998/99 Notice of Assessment from the Australian Taxation Office, in September 1999.  He was shocked that he was not notified of such a debt when he lodged tax returns for the years 1996/97 and 1997/98.  Because he sent the letter of withdrawal and did not attend lectures, he thought that all was attended to.  He should not be held responsible he maintains, for the negligence of others, namely, Australia Post, the University and the Department.

4. The Department submits that no reviewable decision has been made under the Higher Education Funding Act 1988 (the Act).  The debt was incurred under the Act, and 106L of the Act (as it then was) provides for remission of debt in special circumstances.  Section 106 of the Act, as far as it is relevant, provides:

   "106L  Power of Secretary to remit debt in special circumstances

   (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).

   Note:   For meaning of census date, see sections 34 (HECS) and 99 (OLDPS).
             (3A)     The Secretary may issue guidelines relating to circumstances in which the Secretary will be satisfied of a matter referred to in paragraph (3)(a), (b) or (c). A decision of the Secretary under subsection (1) or (2) must be in accordance with any such guidelines.
             (3B)     For the purposes of this section, a person's withdrawal day, in relation to a unit in a course of study for a semester, or a unit of study for a study period, is:

   (a)       if the person:

   (i)has incurred an HEC semester debt for the course of study for the semester; and

   (ii)withdraws his or her enrolment in respect of the semester for the unit of study; and

   (iii)the institution at which the person was enrolled gives notice to the person that the withdrawal has taken effect;

   the day specified by the institution in the notice as the day the withdrawal takes effect; or
             (b)       if:

   (i)the person has incurred an HEC semester debt for the course of study for the semester; and

   (ii)paragraph (a) does not apply to the person; and

   (iii)the person does not complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurred;

   the last day of the semester; or
             (c)       if the person:

   (i)has incurred an OL study period debt for the unit of study; and

   (ii)withdraws his or her enrolment for the unit of study for the study period; and

   (iii)the Agency gives notice to the person that the withdrawal has taken effect;

   the day specified by the Agency in the notice as the day the withdrawal takes effect; or

   (d)       if:

   (i)        the person has incurred an OL study period debt; and

   (ii)       paragraph (c) does not apply to the person; and

   (iii)the person does not complete the unit of study for which he or she was enrolled for the study period;

   the last day of the study period.

   (4)       On receiving an application, the Secretary must as soon as practicable consider the matter to which the application relates and notify the applicant of the decision on the application.

   (5)       The notice of the decision must include:
             (a)       a statement of the reasons for the decision; and
             (b)       a statement to the effect that:

   (i)if the applicant is dissatisfied with the decision of the Secretary the applicant may, within 28 days of receiving the notice, apply under section 106M for reconsideration of the decision; and

   (ii)if the applicant is dissatisfied with the decision on the reconsideration, the applicant may, subject to the Administrative Appeals Tribunal Act 1975, make application to the Tribunal for a review of the decision on the reconsideration.

   (6)       A failure to comply with subsection (5) does not affect the validity of the notice or of the decision notified.

   (7)       If the Secretary remits the whole or a part of a semester debt, the Secretary must give to the Commissioner written notice setting out:
             (a)       the name of the person whose debt is remitted; and
             (b)       the amount remitted; and
             (c)       any other particular that the Commissioner reasonably requires.

5. The Department argues that pursuant to subsections 106L(1) and 106L(3) of the Act, the Secretary may, upon written application made by a person, remit the whole or part of the person's HECS semester debt.  The former subsection applies to applications within three months of the incurring of the debt, and the latter subsection applies to applications received within 15 months.  There is no provision for applications to be lodged more than 15 months after the debt is incurred.  There is no discretion under the Act therefore, to extend the time for lodgment of an application for remission beyond the 15 months.

6. The Department submits further that a person may apply to this Tribunal pursuant to subsection 106M(6) of the Act, but only in cases where a decision has been made under subsection 106M(3) of the Act.  This is in turn dependent upon a decision having been made previously under section 106L of the Act.  The Department contends that in the applicant's case there has been no reconsideration in respect of the HECS debt for first semester 1996, and, therefore, no reviewable decision capable of review by this Tribunal.

7. I have examined the relevant legislation and I accept the Department's submission that there is no discretion available to the Secretary and hence to this Tribunal to extend the time within which an application must be made.  In addition, I heard evidence from the applicant, and although he stated in his application for remission that he separated from his wife in March 1996, it became clear in the course of his sworn evidence today that he was not at that time married, as his Decree Nisi dated 23 April 1998, states that he married Rosa Maria Stirpe on 31 August 1996.  [Exhibit R2]

8. The applicant said in evidence that, in fact, the relationship in March 1996 was with a third woman, not his first wife, the mother of his child, whom he divorced in 1994, nor the wife he married in August 1996.  This is a circumstance not raised until the Hearing.  His evidence in relation to this and to his inquiries to the University and alleged sending of the letter of withdrawal in March 1996 were very unconvincing.

9. In any event, it is clear on the whole of the evidence, that the applicant knew of the fact that he would have a debt if he did not withdraw from the course.  He rang the University.  He was advised to send the letter.  He received no acknowledgment from the University.  He had changed address.  He was at a new address.  He made no inquiries of either the University or the Department; and although he says he was distracted and unable to concentrate, he had sufficient presence of mind to be able to separate from the lady he was allegedly involved with in March 1996, marry Maria in August 1996, tend to all matters relevant therein, and I consider that he made no effort at all, to follow up his letter to the University.  He rested on his rights.

10. In all the circumstances it is clear from the legislation, which must be applied by the Tribunal, that there is no discretion to extend the time within which an application for remission of the debt can be exercised.  I am satisfied, therefore, that there is no reviewable decision, and that this Tribunal has no jurisdiction to entertain the application lodged by the applicant on 1 February 2000.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of WJF Purcell (Senior Member)

Signed:         .....................................................................................
  Associate

Date/s of Hearing  18 August 2000
Date of Decision  18 August 2000
Applicant  In Person
Solicitor for Respondent          Mr Belcher