Brooker and Secretary, Department of Education, Skills and Employment

Brooker and Secretary, Department of Education, Skills and Employment [2022] AATA 78 (25 January 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1701
Re:Viktoria Brooker
APPLICANT

AndSecretary, Department of Education, Skills and Employment
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:25 January 2022
Place:Sydney

The decision under review is affirmed.
................................[SGD].....................................
Dr L Bygrave, Member
CATCHWORDS
HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-crediting – where applicant withdrew after financial census date – whether special circumstances apply – whether circumstances are beyond the applicant’s control – whether applicant’s circumstances made their full impact on or after the census date – whether the circumstances made it impracticable for the applicant to complete the requirements for the unit of study – decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 104-25, 104-30, 169-25
Administration Guidelines 2012 (Cth)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
REASONS FOR DECISION
Dr L Bygrave, Member
25 January 2022
INTRODUCTION

The applicant, Mrs Viktoria Brooker, enrolled in the unit of study ‘CYB6002 – Networking Technologies’ (the unit) at Edith Cowan University for the ‘accelerated online 6’ teaching period that commenced on 26 October 2020 and concluded on 13 December 2020. The last date to withdraw ‘without financial penalty’ (the census date) from the accelerated online 6 teaching period was 5 November 2020 and the last date to withdraw ‘without academic penalty’ was 11 November 2020.[1]
[1] Exhibit T-T6, page 36.
On 10 November 2020, Mrs Brooker withdrew from the unit without academic penalty and, on 11 November 2020, she made an application to Edith Cowan University to withdraw from the unit without financial penalty.
Edith Cowan University, both initially and on review, declined Mrs Brooker’s application to re-credit her FEE-HELP balance for the unit on the basis that she did not satisfy the criteria for ‘special circumstances’ set out in the Higher Education Support Act 2003 (Cth) (the Act).
On 23 March 2021, Mrs Brooker made an application for review to the General Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard in Sydney on 17 December 2021. Mrs Brooker attended the hearing and provided oral evidence to the Tribunal by videoconference.
RELEVANT LEGISLATION
Part 3-3 of the Act stipulates the provisions for FEE-HELP assistance: Division 101 states that a student may be entitled to FEE-HELP assistance for units of study for which they are not Commonwealth supported if certain requirements are met. The FEE-HELP assistance is paid to a higher education provider to discharge the student’s liability to pay their student contribution amounts.
It is not in dispute that Mrs Brooker was entitled to, and received, FEE-HELP assistance for the unit ‘CYB6002 – Networking Technologies’ she enrolled in at Edith Cowan University.
Relevant to this matter, section 104-25 of the Act sets out the ‘main case of re-crediting a person’s HELP balance in relation to FEE-HELP assistance’ as follows:
(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. [emphasis added]
Section 104-30 of the Act prescribes the meaning of the term ‘special circumstances’ as follows:
(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. [emphasis added]
The ‘census date’ is defined in Schedule 1 to the Act, which in turn, refers to ‘the date determined under section 169-25’. Section 169-25 of the Act states:
169-25Determining census dates and EFTSL values
(1) A higher education provider must, for each unit of study it provides or proposes to provide during a period ascertained in accordance with the Administration Guidelines, determine, for that period:
(a) a particular date to be the census date for the unit; and
(b) the EFTSL value for the unit.
Note: If a higher education provider provides the same unit over different periods, the unit is taken to be a different unit of study in respect of each period. Therefore the provider will have to determine a separate census date, and a separate EFTSL value, in respect of each period.
(2) A date determined under paragraph (1)(a) must be determined in accordance with the Administration Guidelines.
(3) The provider must publish:
(a) the census date for the unit by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines; and
(b) the EFTSL value for the unit by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines.
Subsection 104-30(2) of the Act states that I must consider the Administration Guidelines 2012 (the Guidelines). I also note the Guidelines represent government policy and should be applied unless there is good reason not to do so.[2]
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
Chapter 3 of the Guidelines sets out the following policy regarding ‘special circumstances’:
3.1 PURPOSE
3.1.1 The purpose of this chapter 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 36-21(1)(a) of the Act);
(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 36-21(1)(b) of the Act); and
(c)  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 (paragraph 36-21(1)(c) of the Act).
3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1 A 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.
3.5.5 The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.
3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
3.10.1 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.
3.15 CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS
3.15.1 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 occur:
(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; or
(b)family/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; or
(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.
A person is unable to complete the requirements for a unit if the person is unable to:
(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 because of their inability to meet (a), (b) and (c) above.
ISSUE
The determinative issue for the Tribunal is whether special circumstances apply to Mrs Brooker for the purpose of paragraph 104-30(c) of the Act; that is, whether:
·the circumstances were beyond her control; and
·the circumstances did not make their impact on her until on or after the census date for the unit of study in question; and
·the circumstances made it impractical for her to complete the requirement of the unit during the relevant period.
EVIDENCE
The following chronology is based on documentary evidence filed with the Tribunal:
·On 23 September 2020, Mrs Brooker enrolled in the unit of study ‘CYB6002 – Networking Technologies’ for the teaching period ‘accelerated online 6’ as part of the course, Graduate Certificate of Cyber Security at Edith Cowan University.[3]
[3] Exhibits T-T3 and T-T4.
·On 6 October 2020, Mrs Brooker was emailed introductory correspondence from a ‘student success advisor’ at Edith Cowan University. This correspondence contained 2019-2020 key dates for ‘study period 6 2020’: these dates included the unit start and finish dates, but did not include the census date for study period 6 2020.[4]
[4] Exhibit A3, Attachment B.
·The ‘accelerated online 6’ teaching period commenced on 26 October 2020.[5]
[5] Exhibit T-T6, page 36.
·On 29 October 2020, Mrs Brooker received an email from ‘The Team at ECU Online’ regarding her attending a welcome webinar.[6]
[6] Exhibit A3, Attachment B.
·Mrs Brooker exchanged emails with her unit facilitator on 29 October 2020, 5 November 2020 and 6 November 2020 with questions and answers about the unit of study.[7] Mrs Brooker also engaged in the following online discussions: ‘week 2, discussion 1: lab activity all together’ and ‘assessment 1 questions’.[8]
[7] Exhibit A3, Attachment D.
[8] Exhibit A3, Attachment E.
·The census date for the ‘accelerated online 6’ teaching period at Edith Cowan University was 5 November 2020.
·On 7 November 2020, Mrs Brooker completed the due Assessment 1 (quiz).
·On 9 November 2020, Mrs Brooker emailed the course coordinator and the unit coordinator outlining ‘significant issues’ with the unit; these included problems with the pre-recorded lecturing content, disconnection between group discussions and lectures, lab discussions, and the quiz at the end of week 2.[9]
·On 10 November 2020, the unit coordinator responded by email to Mrs Brooker’s 9 November email. This response included an offer to work with her facilitator to support her.[10]
·On 10 November 2020, Mrs Brooker lodged an application with Edith Cowan University to withdraw from the unit on the basis that ‘the course was not what [she] expected’ and the ‘teaching was of poor quality’.[11]
·On 11 November 2020, Mrs Brooker applied to Edith Cowan University for ‘withdrawal without financial penalty’: she attached a statement to her application that set out the unit was the ‘first unit of her intended’ Masters degree and concerns about the ‘quality of the unit’.[12]
·On 13 November 2020, Edith Cowan University declined Mrs Brooker’s application for withdrawal without financial penalty as it did not demonstrate she met the criteria for special circumstances.[13]
·Mrs Brooker sought review of this decision on 16 November 2020.[14]
·On 19 November 2020, Mrs Brooker was issued a Commonwealth Assistance Notice advising her that her FEE-HELP debt for the unit ‘CYB6002 – Networking Technologies’ was $3,980.[15]
·On 22 November 2020, Edith Cowan University informed Mrs Brooker that her ‘application had been reviewed by the University and the outcome remains declined’.[16]
[9] Exhibit T-T14, page 78.
[10] Exhibit T-T14, pages 77-78.
[11] Exhibit T-T8, page 48.
[12] Exhibit T-T9, pages 54 and 56.
[13] Exhibit T-T10, page 57.
[14] Exhibit T-T11.
[15] Exhibit T-T5, page 32.
[16] Exhibit T-T12, page 71.
Mrs Brooker informed the Tribunal that she enrolled in the unit with the intention to complete a Master of Cyber Security at Edith Cowan University. She said that, prior to her enrolment in the unit, she was assured by an enrolment officer at Edith Cowan University that ‘the pathway’ to a Master of Cyber Security was designed for professionals (such as Mrs Brooker) and ‘did not require prior IT knowledge’.[17] She said this was consistent with the admission requirements for a Master of Cyber Security at Edith Cowan University that set out:
To gain entry to the Master of Cyber Security, you require a Bachelor degree in any discipline and to satisfy English competency standards. Alternatively, if you don’t have a Bachelors degree, but can demonstrate a minimum of five years’ relevant professional experience, this may be considered for entry to the Masters degree or for entry to the Graduate Certificate in Cyber Security via our nested qualification pathway. Generally, if you successfully complete a Graduate Certificate you can progress to the Graduate Diploma, and from there, to the Maters by coursework degree.[18]
[17] Exhibit A1.
[18] Exhibit A3, Attachment A.
At the hearing and in her written statements, Mrs Brooker explained that she has a level 9 qualification in marketing, has been employed as a marketing manager for 15 years, and previously completed a Masters degree at the University of NSW in 2005–2006. She said her employment hours as a marketing manager are ‘consistent’ at 40 hours per week. The clear implication of this evidence is that Mrs Brooker’s withdrawal from the unit was not due to her inability to complete study at a Masters level, but rather due to the communication from Edith Cowan University about pre-requisite IT knowledge for the unit, and the poor quality of the online unit and teaching support for students.
Mrs Brooker submitted to the Tribunal that, despite what she had been informed prior to her enrolment, the unit required ‘a substantial amount of IT knowledge, which only became apparent during week 2’.[19] She also noted there was ‘increasing pressure to acquire knowledge outside of the learning module’ because the ‘structure of the unit did not allow for consistent and logical learning’.[20] She observed the content of the unit included ‘complex concepts, filled with abbreviations’ and many students had to undertake research outside the learning platform.[21] She opined the unit was designed for people with ‘extensive prior knowledge in the IT field’.[22]
[19] Exhibits A1 and A3.
[20] Exhibit A1.
[21] Exhibit A1.
[22] Exhibit A1.
Mrs Brooker also contended there was ‘inadequate’ support from the staff teaching the unit.[23] She referred to email and phone interactions between herself, the facilitator and the unit coordinator that occurred during and after week two, the week of the census date.
[23] Exhibit A3.
Finally, although Mrs Brooker acknowledged that she was generally aware about census dates from her earlier university studies, she expressed concern to the Tribunal that the census date was in the second week of the ‘accelerated online 6’ teaching period and she was not ‘proactively’ informed by Edith Cowan University the census date was 5 November 2020. She said the ‘flawed and misleading’ nature of the unit only became clear after she completed the assessment task on 7 November 2020, which was two days after the census date.[24]
[24] Exhibit A1.
In response to Mrs Brooker’s criticism of the unit, Edith Cowan University provided evidence including a statement by the unit coordinator and facilitator, an analysis of the student fail rates for the unit based on ‘cognate [student with prior IT knowledge] versus non-cognate backgrounds’ and text responses providing student feedback on the unit. On the basis of statistics analysing the fail rates of students who ‘genuinely attempted’ to pass the unit, Edith Cowan University concluded that:
·6.2% of students with a cognate qualification failed the unit;
·10.2% of students with a non-cognate qualification (such as Mrs Brooker) failed the unit; and
·5.7% of students with professional experience failed the unit.[25]
CONSIDERATION
[25] Exhibit ST-ST2, page 4.
Were the circumstances beyond Mrs Brooker’s control?
In written statements filed with the Tribunal on 30 July 2021 and 11 November 2021, and oral evidence at the hearing, Mrs Brooker submitted the circumstances were beyond her control because the unit of study required a substantial amount of IT knowledge, there was pressure to acquire knowledge outside the learning module, and the level of direction and support from the teaching staff was inadequate.
I accept that, prior to her enrolment, Mrs Brooker made a genuine attempt to inquire at Edith Cowan University about whether she required prior IT knowledge to complete the unit. I also accept that the unit did not meet the expectations of Mrs Brooker – either in terms of the unit content or quality of teaching.
Having regard to the provisions in the Act and chapter 3.5 in the Guidelines, however, I cannot find these circumstances ‘were beyond her control’. In particular, I am not satisfied that a situation that comprises a person being dissatisfied with the content and teaching of a unit of study at a university is ‘unusual, uncommon or abnormal’ as required by 3.5.5 of the Guidelines. In making this finding, I also observe the evidence shows a number of emails between Mrs Brooker and the unit facilitator and/or unit coordinator during the period from 29 October 2020 (three days after the teaching period commenced) to 10 November 2020 (the day Mrs Brooker withdrew from the unit), which indicate an attempt by the teaching staff to address her questions and concerns about the unit.
Did the circumstances make their full impact on Mrs Brooker on or after the census date for the unit of study?

Mrs Brooker submitted to the Tribunal that the ‘full impact of the flawed and misleading nature’ of the unit only became apparent after the first assessment on 7 November 2020, which was two days following the census date. In particular, Mrs Brooker wrote that after she completed the first assessment (a quiz), ‘it was an inescapable fact that the course would not provide [her] with what [she] had signed up for’.[26]
[26] Exhibit A1.
It is not in dispute that the census date for the accelerated online 6 teaching period at Edith Cowan University was 5 November 2020 and Mrs Brooker applied to the University to withdraw from the unit without financial penalty on 11 November 2020. I also accept the following submissions from Mrs Brooker:
·the census date of 5 November 2020 was less than two weeks after the teaching period commenced on 26 October 2020; and
·she was not ‘proactively’ informed about the census date for the unit and teaching period 6 by Edith Cowan University as the census date was not included in the key dates the University emailed to her on 6 October 2020.
However, I also note the ‘accelerated’ teaching period 6 in 2020 at Edith Cowan University was relatively short at only just under seven weeks and information about the census date was available to Mrs Brooker through the student intranet at Edith Cowan University.
In considering this issue, I have read in detail the exchange of emails between Mrs Brooker and the unit facilitator on 29 October 2020, 5 November 2020 and 6 November 2020, and Mrs Brooker’s participation in online discussions. This evidence supports a finding that Mrs Brooker was making a comprehensive and genuine attempt to engage with the content of the unit and complete the unit requirements.
I am also satisfied that that it would have been extremely difficult for Mrs Brooker – or anyone else in her situation – to fully comprehend the requirements of the unit within the 10 days’ time period of 26 October 2020 (the first day of the teaching period) to 5 November 2020 (the census date). For this reason, I accept Mrs Brooker’s evidence and submissions that the circumstances relating to her capacity to complete the unit of study and concerns regarding teaching support only made their ‘full impact’ on her after she completed Assessment 1 (quiz) on 7 November 2020.
Based on the evidence, I am satisfied the circumstances made their full impact on Mrs Brooker after the census date for the unit of study.
Did the circumstances make it impracticable for Mrs Brooker to complete the requirement of the unit during the relevant period?
Mrs Brooker submitted that it was impracticable for her to complete the unit requirements because the ‘product’ that Edith Cowan University sold her was ‘not what they said it was’ and the ‘excessive amount of additional research’ she was required to undertake for the unit was ‘unreasonable and unsustainable’.[27]
[27] Exhibit A1.
Chapter 3.15.1 of the Guidelines sets out various circumstances that would make it impracticable for a person to complete the requirements for a unit of study:
·paragraphs (a), (b) and (c) refer to medical, family/personal and employment related circumstances, which are not relevant to Mrs Brooker’s present situation; and
·paragraph (d) refers to course related circumstances such as a university changing the unit it offers, however, there is no evidence before the Tribunal that Edith Cowan University changed the unit of study, ‘CYB6002 – Networking Technologies’ in the accelerated teaching period 6 2020.
The Guidelines, at chapter 3.15.1, further states that a person is ‘unable to complete the requirements for a unit’ if they are unable to:
·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
·complete the required assessable work; or
·sit the required examinations; or
·complete any other course requirements due to any or all of these factors.
As set out in paragraph 20, Edith Cowan University filed evidence that included an analysis of student fail rates for the unit (based on students who ‘genuinely attempted’ to pass the unit) separated into students with a ‘cognate qualification’ and students with a ‘non-cognate qualification’. This analysis shows that 10.2% of students with a non-cognate qualification (such as Mrs Brooker) failed the unit in comparison to 6.2% of students with a cognate qualification. While I accept this statistical analysis suggests that Mrs Brooker (as a non-cognate student) was part of a student cohort with a slightly higher likelihood of failing the unit, I place limited weight on this evidence in considering whether Mrs Brooker’s circumstances meet the requirement of paragraph 104-30(1)(c) of the Act. I find that this statistical analysis by Edith Cowan University, as well the student comments about the unit, are somewhat subjective and could be used to support the view of either Mrs Brooker or the University.
More relevantly, I am satisfied there is no evidence before to the Tribunal to show that Mrs Brooker was unable to complete the requirements for the unit because she was unable to undertake the necessary private study required such as attending lectures/tutorials or meeting the compulsory course requirements, or complete the required assessable work, or sit the required examinations. While Mrs Brooker may have felt the study requirements for the unit were excessive, I do not find this equates to her being unable to complete the unit requirements. Indeed, based on the evidence of Mrs Brooker that she is employed professionally in a full-time managerial position and previously completed a Masters degree at the University of New South Wales, it appears clear that she would have been very able to complete the requirements for the unit of study – albeit, this may have required her to undertake more study than she anticipated.
For these reasons, I am satisfied the circumstances did not make it impracticable for Mrs Brooker to complete the requirement of the unit during the relevant period.
CONCLUSION
In accordance with the provisions of section 104-30 of the Act, ‘special circumstances’ only apply to a person where the circumstances are beyond their control, and make their full impact on the person on or after the census date, and make it impracticable for the person to complete the requirements for the unit of study.
While I accept Mrs Brooker’s view that the unit of study did not meet her expectations and this situation only made its’ full impact on her after the census date for the unit, I find that these circumstances were not beyond her control and did not make it impracticable for her to complete the requirements for the unit of study. I am therefore satisfied the provisions in section 104-30 of the Act were not met.
DECISION
The decision under review is affirmed.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.................................[SGD].....................................
Associate
Dated: 25 January 2022

Date(s) of hearing: 17 December 2021

Applicant: In person

Solicitors for the Respondent: Ms Subasha Prasad, MinterEllison

[2022] AATA 78

25 January 2022

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Date(s) of hearing:	17 December 2021
Applicant:	In person
Solicitors for the Respondent:	Ms Subasha Prasad, MinterEllison