Callaghan and Secretary, Department of Family and Community Services

[2000] AATA 907

CATCHWORDS – HIGHER EDUCATION CONTRIBUTION SCHEME – debt arising due to withdrawal from subject after census date – whether applicant has special circumstances to allow debt to be waived – whether s. 106L(3) exhaustive of criteria that must be established – circumstances within applicant's control when he chose to leave university to pursue a career as an ironman - decision affirmed.

Administrative Appeals Tribunal Act 1975 – 34B, 37
Higher Education Funding Act 1988 – ss 34, 39, 41, 57, 106J, 106L, 196L, Chapter 5A
Money-lenders and Infants Loan Act 1941-61 (NSW) – s 24
Workers' Compensation Act 1926 (NSW) s 6

Beadle v Director-General of Social Security (1985) 60 ALR 225; (1985) 7 ALD 670
Deeble v Robinson [1954] 1 QB 77
Douglas v Minister for Aboriginal and Torres Strait Islander Affairs (1994) 34 ALD 192; (1994) 49 FCR 507; (1994) 88 LGERA 7
Favelle Mort Ltd v Murray (1975-6) 8 ALR 649; 133 CLR 580
Feldmann and Department of Employment, Education, Training and Youth Affairs (unreported, 13 March, 1997, Decision No. 11432)
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Hepples v Commissioner of Taxation (1990) 94 ALR 81; (1990) 21 ATR 42; (1990) 22 FCR 1; (1990) 90 ATC 4497
Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242; [1964] NSWR 406
Re Gray (Judge of the Federal Court of Australia), Adamson and AMWU; Ex parte Marsh (1985) 62 ALR 17; (1985) 59 ALJR 804
Secretary, Department of Education, Training and Youth Affairs v Ellem (unreported, [2000] FCR 695, 26 May 2000)
Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441; [1977] VR 342; (1976) 6 ATR 344; (1976) 76 ATC 4130
Walker v Wilson (1999) 99 ALR 1
YZ Finance Company Pty Limited v Cummings (1963-64) 109 CLR  395; [1964] ALR 667

DECISION AND REASONS FOR DECISION [2000] AATA 907

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/973
GENERAL ADMINISTRATIVE DIVISION      )

Re                  TRAVIS CALLAGHAN

Applicant

AndSECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal  Miss S A Forgie (Deputy President)

Date  13 October, 2000

Place  Brisbane

DecisionThe Tribunal affirms the decision of the respondent dated 17 May, 1999.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 2 June, 1999, the applicant, Mr Travis Callaghan, applied for review of a decision of a delegate of the Secretary of the Department of Education, Training and Youth Affairs ("Secretary") dated 17 May, 1999.  In that decision, the delegate affirmed an earlier determination by another delegate dated 19 April, 1999 not to remit a Higher Education Contribution ("HEC") semester debt pursuant to s. 196L of the Higher Education Funding Act 1988 ("the Act").

1. Both parties notified the Tribunal that they did not want to make any submissions or give any evidence in addition to the written material already lodged in the Tribunal. Therefore, pursuant to s. 34B of the Administrative Appeals Tribunal Act 1975 ("AAT Act"), I have decided to review the decision on the basis of that written material without holding a hearing. The documents which I have considered are those lodged pursuant to s. 37 of the AAT Act and the written submissions lodged on behalf of the Secretary. Mr Callaghan declined the invitation to make any further submissions.

ISSUE

1. The issue in this case is whether the circumstances in which Mr Callaghan failed to complete a course of study are special circumstances entitling him to a remission of the HEC semester debt he has incurred.

BACKGROUND

1. There was no disagreement between the parties as to the facts in this matter.  In view of that, I have made a number of findings of fact which I will set out in the following paragraphs.

1. In 1999, Mr Callaghan was a sportsman who was part of the National Ironman Series (Uncle Toby Super Series).  He was also a student at the Curtin University of Technology ("CUT").  In the first semester of 1999, he was enrolled at CUT in three subjects in a course leading to a Bachelor of Surveying degree.  Those subjects were Analogue Remote Sensing 281, Cartographic Statistics 181 and Mathematics 181.  He withdrew from Analogue Remote Sensing 281 and Cartographic Statistics 181 on 19 March, 1999.

1. In April, 1999, Mr Callaghan was invited to train with "the best ironmen in Australia on the Goldcoast" (T documents, page 11).   He regarded this a "really big" opportunity for him but recognised that his acceptance of the opportunity would lead to his missing a large amount of time from his studies.  He did not wish to withdraw entirely but applied for leave of absence.  In a letter dated 9 April, 1999 to the Academic Registry Office at CUT, Mr Callaghan sought its assistance as to how he could withdraw from Mathematics 181 "without incurring any HECS penalties".  He said that he had not withdrawn before the census date of 31 March, 1989 (T documents, page 25) because he "was unaware of the opportunity … [he] was going to be granted" (T documents, page 11).  His coach and manager, Mr Glenn Eldon, also wrote to the Academic Registry Office in support of Mr Callaghan's position.  He wrote:

"I am writing to confirm to you the recent invitation for Travis Callaghan to move interstate and train with Australia's leading ironmen.  This is a really good opportunity for Travis and would be an excellent learning experience for him.  Unfortunately the move means missing a large amount of university." (T documents, page 12)

1. On 16 April, 1999, Mr Callaghan lodged an application for remission of a HEC semester debt in relation to his withdrawal from Mathematics 181 in respect of the first semester of 1999.  He gave as his special circumstances that he was "moving interstate for work purposes" (T documents, page 8).  His application was refused on the basis that his:

"… supporting documentation does not demonstrate that his circumstances changed after the census date, when it became apparent that he was unable to continue his study, or that due to circumstances beyond his control he was prevented from withdrawing from his study before the census date." (T documents, page 13).

1. In support of his request that the decision be reconsidered, Mr Callaghan wrote:

"I am writing to appeal your decision not to remit the debit of which I have occurred.  I find this decision totally unfair and over the top.

When I was aware that I was invited to go away to train, it was already past the cut off date.  The documentation I supplied you with clearly stated this.  I was not aware of my situation before the cut off date, as you clearly claim in your letter. ..." (T documents, page 21)

1. In affirming the decision on 17 May, 1999, a delegate of the Secretary stated that Mr Callaghan's supporting documentation:

"… demonstrates that he was offered an opportunity to train in Queensland and would be required to move interstate.  It does not demonstrate when this offer was made or when it was to take effect.  Furthermore, Mr Callaghan has not demonstrated that his circumstances were beyond his control." (T documents, page 22)

1. In support of Mr Callaghan's application in this Tribunal, Mr Eldon wrote on 28 May, 1999:

"I am writing to confirm the recent invitation dated Wednesday, 7th April 1999 for Travis Callaghan to move interstate and train with Australia's leading ironmen.

This invitation is an excellent opportunity for Travis to further his sporting career and was unexpected.  I believe that Travis received the invitation approximately one week after the required withdrawal date from university.  I hope that he will be granted some leniency in this situation.

The opportunity presented to Travis is an important step in establishing a position in the top 10 ironmen in Australia.  The down side of this sporting opportunity is that Travis' move with (sic) require him to miss a large amount of university.  I hope he will not be penalised for trying to realise a dream. …" (T documents, page 4)

LEGISLATIVE FRAMEWORK

1. Under Chapter 4 of the Act, an institution of higher education within the meaning of s. 34(4) must, on the census date, require each contributing student to make a contribution in respect of any designated course of study he or she is undertaking and in respect of the semester in which he or she is undertaking it (s. 39).  The contribution is made towards the cost of provision of that course and its amount is calculated according to s. 39.  The "census date" in relation to a course of study is ascertained in accordance with s. 34(1) of the Act. It is not disputed that, in respect of semester one in 1999, the census date was 31 March, 1999.

1. An institution may not permit a contributing student, who is not an excepted student, to either enrol for, or undertake, a designated course of study unless he or she has taken one or other of three courses of action.  The first is that he or she has paid the institution at least 75% of the contribution that the institution has assessed he or she will have to pay in respect of that course on the census date and has given the institution a document requesting the Commonwealth to pay the institution the balance payable in respect of the course (s. 41(1)(a)).  If this course is followed, the Commonwealth is required to pay, as a benefit to the student, an amount equal to the remainder, if any, of the contribution in discharge of his or her liability to pay the remainder of the contribution (s. 57(2)).

1. The second course of action is set out in s. 41(1)(b) and may be taken where the contributing student has not paid at least $500.00 or 75% of the contribution.  He or she must give the institution a document stating that he or she requests the Commonwealth to lend him or her an amount equal to the unpaid amount of the contribution and to use that amount to pay his or her liability to the unpaid part of the contribution to the institution.  The contributing student must also acknowledge that he or she will make payments in accordance with Chapter 5A.  If a student follows the second course of action, the Commonwealth is required, as a benefit to him or her, to lend him or her an amount equal to the unpaid part of the contribution.  It does not pay that amount to the student but is required to apply the amount so lent in making a payment to the institution in discharge of the student's liability to pay the unpaid amount of the contribution (s. 57(3)).

1. Where a contributing student has made a payment of at least $500.00 but that amount is less than 75% of the assessed contribution payable by that student, he or she is required to comply with s. 41(1A).  In that case, the Commonwealth is required, as a benefit to him or her, to lend him or her an amount equal to the unpaid part of the contribution.  It does not pay that amount to the student but is required to apply the amount so lent in making a payment to the institution in discharge of the student's liability to pay the unpaid amount of the contribution (s. 57(3A)).

1. Where the Commonwealth has made a loan to a person and used that loan to pay his or her liability to pay a contribution in respect of a course of study in respect of a semester pursuant to s. 57 of the Act, the student incurs a HEC semester debt in respect of that course of study in respect of that semester. The amount of that debt is an amount equal to the amount of the loan (s. 106J(1)).  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.  It is incurred regardless of whether or not the Commonwealth has made the payment to the institution (s. 57(2)).

1. Section 106L of the Act gives the Secretary the power to remit the whole or part of the debt incurred by a person who has not completed the course requirements for his or her course of study in respect of a semester during the year in which the semester occurred (s. 106L(1)). The person must make a written application within the time limits prescribed in s. 106L(1)(c).  Mr Callaghan has complied with those time limits.

1. The Secretary may only remit the debt in whole or in part if he "… is satisfied that special circumstances apply to the person …" (s. 106L(1)(b)).  What is meant by "special circumstances" is set out in s. 106L(3):

"For the purposes of this section, special circumstances, in relation to a person, include a 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 …; 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, …"

1. The Secretary may issue guidelines "…relating to circumstances in which the Secretary will be satisfied of a matter referred to in …" ss. 106L(3)(a), (b) or (c). If he does so, any decision he makes under ss. 106L(1) or (2) must be in accordance with those guidelines. This is the effect of s. 106L(3A).  

1. The Secretary issued guidelines in October, 1997 for the remission of HEC debt for units of study commenced on or after 1 January, 1998.  He noted that he could also be satisfied that special circumstances exist even though they were not dealt with in the guidelines.  In so far as they are relevant to this case, the guidelines read:

"The Secretary may be satisfied that a person's circumstances:

(a)are beyond a 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.  This situation must be unusual, uncommon or abnormal.  A lack of knowledge or understanding of HECS or OLDPS is not considered to be beyond a person's control.

(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) if the person's circumstances occur:

(i)before the census date, but worsen after that day, or

(ii)before the census date, but the full effect or magnitude does not become apparent until on or after that day, or

(iii)on or after the census date.

(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) if the person is unable to:

(i)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

(ii)complete the required assessable work, or

(iii)sit the required examinations, or

(iv)complete any other course requirements because of their inability to meet (i), (ii) or (iii).

Special circumstances might arise from medical, family, personal, employment or course related reasons.  In considering a person's application, the Secretary must be satisfied that the person has met the criteria outlined above in (a), (b) and (c)." (T documents, pages 19 – 20)

CONSIDERATION

1. The first issue in this case is to consider the meaning of s. 106L(3) itself. It seems to me that it is open to two possible interpretations. The first is that, if special circumstances are found to exist, those circumstances must show characteristics meeting the descriptions set out in paragraphs (a), (b) and (c) of s. 106L(3) in addition to any other features that may exist in the person's particular circumstances. The second is that special circumstances may be found in circumstances having the characteristics set out in paragraphs (a), (b) and (c). They may also be found to exist in other circumstances even if they do not have all or any of the characteristics specified in the three paragraphs but if they do otherwise constitute special circumstances having regard to the purpose and provisions in the Act.

1. The difficulty I face arises from the use of the word "include".  Generally, that word is interpreted to enlarge the ordinary meaning of a word or expression so that the word or expression is not only given its ordinary meaning but also those said to be included (see, for example, Deeble v Robinson [1954] 1 QB 77 at 81-2, Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441 at 455 followed in Douglas v Minister for Aboriginal and Torres Strait Islander Affairs (1994) 34 ALD 192 at 203).

1. This approach was adopted in Favelle Mort Ltd v Murray ((1975-6) 8 ALR 649; 133 CLR 580) in which the High Court considered s. 6 of the Workers' Compensation Act 1926 (NSW) which defined the word "injury" as:

"personal injury arising out of or in the course of employment and includes –

(a)a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor."

Barwick J said of the definition (ALR 656; CLR 588-9):

"… that there is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined. Of course, if the matter included by extension of the definition does not otherwise or in any sense fall within the connotation of the word or expression being defined, the inclusion of such matter will not go beyond the terms in which the inclusion is expressed. Thus, if no reception of any disease falls within the connotation of the word 'injury' in the Act in its normal sense, the extension in par (a) will only include in that connotation such diseases as satisfy the conditions expressed in the extension. In a sense, all other diseases would be excluded, ie because not included.

But if the contraction of a disease by an external cause or excitement is within the connotation of the word 'injury' in legislation of this kind, an extensive paragraph such as par (a) is not required by any rule of construction to be read as exclusive of some part of the ordinary connotation of the word whose connotation is being extended by inclusive words."

1. The word "include" may also denote not so much an extension of the ordinary meaning of a word or expression but a clarification of what otherwise may have been in doubt.  It gives that clarification by specifying those that might otherwise have been in doubt (Hepples v Commissioner of Taxation (1990) 94 ALR 81 at 101; (1990) 22 FCR 1 at 21).

1. The word may also be used to indicate that a definition is intended to be exhaustive.  In YZ Finance Company Pty Limited v Cummings (1963-64) 109 CLR 395, the appellant brought an action on a promissory note given by the respondent for money lent and interest payable on the loan. The respondent gave the promissory note as security for the loan together with a bill of sale and a second mortgage. Under the Money-lenders and Infants Loan Act 1941-61 (NSW), where a security had been given, the appellant was not entitled to institute any proceedings, other than for the enforcement of the security, to recover any amount payable (s. 24(1)).  In s. 24  "… 'security' includes bill of sale, mortgage, lien, and charge of any real or personal property, and any assignment, conveyance, transfer or dealing with any real or personal property to secure the repayment of any loan" (s. 24(1)).

1. The majority of the High Court (McTiernan, Kitto, Taylor and Windeyer JJ, Menzies J dissenting) decided that the definition in s. 24(2) was exhaustive and that, consequently, a promissory note was not a security and the appellant's action was barred by s. 24(1).  McTiernan J focused in his judgement on the limitations placed by the definition on the ordinary meaning of the word "security" and adopted the reasons of Sugerman J:

"… in Batchelor & Co Pty Ltd v Websdale [1963] S.R. (NSW) 48; (1962)79 WN (NSW) 494, at pp. 496-497. His Honour said: 'The enumeration in sub-s. (2) adds nothing to the natural import of the word 'security'. Indeed all the matters enumerated are within the strictest meaning of that term and, within that meaning, the second limb of the definition is of the widest import. All the matters enumerated share the common characteristic that they relate to securities by which rights in relation to specific property of the debtor are conferred. These considerations lead to the conclusion that 'include' in sub-s. (2) is equivalent to 'mean and include' and that the definition therein given is intended to be exhaustive, or at least that the securities intended to be embraced all share the common characteristic of conferring rights against specific property' [1963] SR (NSW), at pp.52, 53; (1962) 79 WN, at pp. 496, 497. The word 'security' in the context of sub-s. (1) could, in the absence of sub-s. (2), include a promissory note. All the transactions mentioned in sub-s. (2) are securities in themselves. None of them needs any expression of legislative intent to be a security for the purpose of sub-s. (1). The manifest object of sub-s. (2) to be gathered from its contents is to afford guidance as to what the term 'security' in sub-s. (1) is intended to be confined. I think it would be contrary to the legislative intention revealed by adding sub-s. (2) to sub-s. (1) to enlarge by construction the scope of the word 'security' in sub-s. (1) to bring within the operation of the latter provision a promissory note, as no such instrument falls within the enumeration of securities in sub-s. (2). In my opinion, this subsection provides 'an exhaustive explanation' of the meaning of 'security' for the purpose of sub-s. (1). …" (page 399)

1. Kitto J focused not only on the definition in s. 24(2) but also on the policy behind s. 24.  After considering the rights given by each of the securities specified in the definition, he continued:

"… The element common to all is the right of recourse against specific property; and it seems impossible to doubt that what the sub-section means by 'the enforcement of the security', as applied to any of the specified things, is the taking of steps in virtue of that thing to obtain payment of the money lent (and interest) out of the property comprised in it. To accept this conclusion is to see at once an intelligible policy behind sub-s. (1). A money-lender is not to have both a right to get his money out of property and a right to sue on the personal obligation of the borrower to pay. He must make his choice: if he elects for the former he must be taken to forego the latter. As pursuit of that policy requires, the list of things which sub-s. (2) says that 'security' includes is so widely described as to cover all possible forms of security over specific property. But unless sub-s. (2) means that that list covers the whole range of the word's inclusion for the purposes of the section, sub-s. (1) is not to be explained in the way I have mentioned: it must be explained as the product of some other policy. None is to be seen. It is true that modern usages have made 'security' a word susceptible of more meanings than one. Its primary meaning is that which sub-s. (2) describes if it be intended as an exclusive definition: see Singer v Williams [1921] 1 A.C. 41, at pp. 49, 57. In such contexts as are found in ss. 22 and 23 of this very Act: see Pacific Acceptance Corporation Ltd v Marine Food Products Pty Ltd (1959) 77 W.N. (NSW) 898, at p. 899, and in some wills: see Halsbury's Laws of England 3rd ed. vol. 39, p. 1027, par. 1545, the word may have a secondary or popular meaning wide enough to comprehend a promissory note. But give it in s. 24(1) a meaning extending beyond securities over property, a meaning wide enough to include the borrower's promissory note, and the enactment of sub-s. (1) becomes, as I have said, inexplicable on any basis of rational policy. There is no sensible purpose to be seen in forbidding a money-lender to sue on a contract of loan while allowing him to sue on a collaterally-created personal liability of the borrower and so to obtain a judgment against the borrower for the identical sum of money. It seems to me the necessary conclusion that sub-s. (2) is enacted not in order to provide a glimpse of the obvious but in order to describe the whole extent of the inclusiveness of 'security' for the purpose of the section, and by so doing to perform the very necessary work of precluding the inference which otherwise might have been drawn from the fact that the word is used in a wider sense elsewhere in the Act." (pages 402-403)

1. Whether or not the word "include" is used in an exhaustive or extending sense depends upon the context in which it is used (Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242 at 1244 per Sugerman J). Of relevance in assessing that context will be matters such as the terms used in definitions in other provisions of the enactment and whether meanings other than those listed could ordinarily be regarded as coming within the term word defined (Re Gray (Judge of the Federal Court of Australia), Adamson and AMWU; Ex parte Marsh (1985) 62 ALR 17 at 27, per Barwick CJ).

1. That brings me back to the s. 106L of the Act. Other provisions in the Act define a range of words and expressions by adopting the word "means". That suggests an exhaustive definition but, by way of contrast, s. 106L(3) has chosen to use the word "include". On its face, that choice suggests that s. 106L(3) should not be read in an exhaustive fashion. 

1. The second aspect that needs to be considered is the meaning that has been given to the expression "special circumstances" in the past. That is relevant in considering whether the characteristics identified in s. 106L(3) are the only characteristics that might lead to a conclusion that special circumstances existed or whether there are others.  I have had regard first to the words of the Full Court of the Federal Court when it said that it is not "... possible to lay down precise limits or precise rules." (Beadle v Director-General of Social Security (1985) 60 ALR 225 (Bowen CJ, Fisher and Lockhart JJ)). Of the expression "special circumstances", it has been said by Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 that:

"… although imprecise [it is] sufficiently understood not to require judicial gloss: Beadle's case [(1985) 60 ALR 225, 7 ALD 670] (at ALR 229; ALD 674), and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case.  It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary." (page 545)

1. Although I have referred to only two of the authorities, it is clear that they have not been prepared to prescribe any particular characteristics to identify circumstances as special circumstances.  If confined at all, the meaning of "special circumstances" is confined only by what is out of the usual or ordinary case and that must be determined in the context of the relevant legislation and its objectives. Bearing its ordinary meaning in mind, it is not difficult to envisage circumstances which would be out of the usual or ordinary case but which would not possess all of the characteristics set out in s. 106L(a), (b) and (c). 

1. A further matter to which regard needs to be had is the requirement that, if the Secretary decides to issue guidelines, any decision he makes to remit a person's debt under ss. 106L(1) or (2) must be "in accordance with any such guidelines" (s. 106L(3A).  What is meant by the expression "in accordance with"?  It has been considered in the judgement of Deane, Dawson, Toohey and McHugh JJ in Walker v Wilson (1999) 99 ALR 1 in the context of whether a journey had been undertaken in accordance with the terms and conditions of an employee's employment. Their Honours said:

"In the context of sub-para (iii), the words 'in accordance with' should be construed as meaning 'in conformity with' or 'consistently with'." (page 11)

1. Adopting this interpretation, it would be open to argue that only decisions made having regard to the matters set out in the guidelines could be in conformity or consistent with these guidelines.  It would also be open to argue a decision may be in conformity with, or consistent with, the guidelines even if the decision maker were to decide that the person had special circumstances that did not exhibit the characteristics set out in paragraphs (a), (b) and (c).  The guidelines would simply have no application in the particular circumstances of the case. 

1. Taking all of these matters into account, it is open to argue that s. 106L(3) does not seek to provide an exhaustive definition of the meaning of "special circumstances" but intends to ensure that one set of circumstances is taken to amount to special circumstances. As I have been asked to consider this matter on the papers only and neither party has addressed the issue, I have decided not to express a final conclusion on either the interpretation of s. 106L(3) or on the approach taken in the guidelines. It would be open to me to ask them for further submissions but, as I have decided that I would reach the same conclusion on either interpretation, it is not necessary for me to express a concluded view. I would observe, however, that, if s. 106L(3) is not an exhaustive provision, the guidelines are inconsistent with it in so far as they state that:

   "Subsection 106L(3) of the Act outlines what circumstances the Secretary may be satisfied are special circumstances under the legislation." (T documents, page 19); and

   "In considering a person's application, the Secretary must be satisfied that the person has met the criteria outlined above in (a), (b) and (c)." (T documents, page 20)

2. I would also note that the criticism made by Lindgren J in relation to later guidelines is equally applicable to the guidelines I must consider.  He observed in Secretary, Department of Education, Training and Youth Affairs v Ellem (unreported, [2000] FCA 695, 26 May, 2000) that the guidelines provided that the:

"Secretary may be satisfied that the matters referred to in paras (a), (b) and (c) of subs 106L(3) exist if the criteria referred to in paras (a), (b) and (c) respectively of the Guidelines are met. But subs 106L(3A) empowers the Secretary to issue guidelines relating to circumstances in which the Secretary will be satisfied of a matter referred to in para (3)(a), (b) or (c).  Clearly, the purpose of the subsection is to allow persons to be informed by the Secretary that if certain guidelines are met, there will be no further question but that the Secretary will be satisfied of the matters referred to in para (a), (b) and (c) of subs 106L(3), and therefore, will be satisfied that special circumstances apply to the person. There would then remain only the residual discretion indicated by the word 'may', being the third word in subs 106L(1), whether to remit the whole or part of the person's HEC Semester debt." (paragraph 26)

1. I will return now to the particular circumstances of Mr Callaghan's case and will consider them first in light of the Secretary's guidelines.  On the basis of Mr Callaghan's evidence, I am satisfied that he is an ironman and I am satisfied that his being so is as a result of a choice he has made.  His being an ironman, however, is not the situation that led to his feeling that it is impractical for him to complete the course requirements for Mathematics 181 in the first semester of 1999.  I am satisfied that the invitation to train on the Gold Coast was that situation.  There is no evidence as to how this invitation came about.  That is to say, there is no evidence whether Mr Callaghan had to apply for the invitation in some way or whether the invitation was completely unsolicited.  I am prepared to find that Mr Callaghan's being invited was completely beyond his control.

1. The harder questions are whether his accepting the invitation was a matter within his control and whether his situation was unusual, uncommon or abnormal.  It may well be unusual, uncommon or abnormal for students to be invited to train with the top ten ironmen in the country but that is not the appropriate standard to apply.  The appropriate standard to apply is whether it is unusual, uncommon or abnormal for students to be given an opportunity "to realise a dream" or, perhaps more prosaically, to follow another career or employment opportunity or another activity.  I am of the view that it is not unusual, uncommon or abnormal to receive such opportunities.  It may well be "… unreasonable and unfair to have expected … [him] to forego the opportunity" and it may well have been reasonable for him to accept the opportunity as found in the context of a different set of guidelines in  Feldmann and Department of Employment, Education, Training and Youth Affairs (unreported, 13 March, 1997, Decision No. 11432, paragraph 22) but unreasonableness and unfairness are not in themselves the criteria to be applied under the current guidelines. 

1. Unreasonableness and unfairness may, however, be relevant in determining what is genuinely a choice which a person is free to make and a choice which, although technically a choice, is a course which circumstances require that he or she adopt.  Serious illness and dire financial circumstances could be examples of such circumstances.  As Lindgren J said in the Ellem case:

"The point is that there is a continuum on which sets of circumstances can be placed according to the degree to which circumstances within the person's own control, or external circumstances beyond his or her control, are properly to be seen as causative of his or her non-completion of the course requirements, and it is a misconception to think that 'special circumstances' cannot apply to the person whenever it can be said that an element of his or her decision-making is involved." (paragraph 38)

1. In Mr Callaghan's case, I am satisfied that he was faced with a genuine choice.  It was not one which, by dint of circumstances, he could not refuse.  Life, as it is wont to do, gave him a choice between working towards being an elite sportsman in his field or working towards being a surveyor.  It might well have been a case in which he was "mad not to" take up the offer of training on the Gold Coast and putting his course "on hold" as it were but that does not make the choice one that was out of his control.  It was in his control. 

1. I am satisfied that Mr Callaghan's choice did not make its full impact until after the census date.  As to paragraph (c) of the guidelines, there is no evidence that it is impractical for Mr Callaghan to complete the course.  That is to say, there is no evidence whether he could have completed it by correspondence or otherwise.  It was not a matter that was addressed in the written material.

1. It follows that I do not consider that the circumstances that led him to fail to complete Mathematics 181 in the first semester of 1999 have all of the characteristics in paragraphs (a), (b) and (c) in s. 106L(3) of the Act. Looking to his circumstances overall, I am not satisfied that his circumstances are outside the usual or ordinary case so that they amount to special circumstances. People are often faced with career choices after they have embarked upon a particular course be it of study or other action. There is nothing unfair or unreasonable in expecting that Mr Callaghan pay his HEC semester debt in circumstances in which he made a choice to "follow his dream" rather than continue his course.

1. For the reasons I have given, I affirm the decision of the respondent dated 17 May, 1999.

I certify that the forty one preceding paragraphs are a true copy of the reasons for the decision herein of 

Signed:          ..........................................
  M Martinez     Associate

Date of Hearing   Heard on papers
Date of Decision   13 October, 2000
Solicitor for the Applicant            Own representation
Solicitor for the Respondent         Australian Government Solicitor