Cherie DOAN and Secretary, Department of Education
[2014] AATA 580
[2014] AATA 580
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1173
Re
Cherie DOAN
APPLICANT
And
Secretary, Department of Education
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 7 August 2014 Date of written reasons 21 August 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd].......................................................................
Mr Conrad Ermert, Member
EDUCATION - Higher Education Support - Student Learning Entitlement - application period - whether application is made before the end of the application period - whether not possible for the application to be made before the end of that period
LEGISLATION
Higher Education Support Act 2003
Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011
CASES
Quita Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 824
Madziva and Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2013] AATA 452
REASONS FOR DECISION
Mr Conrad Ermert, Member
21 August 201421 August 2014
INTRODUCTION
These written Reasons for Decision are essentially the same as the reasons given orally at the hearing. I have added the Introduction and the details of the hearing to assist the understanding of readers who were not present at the hearing.
On 15 January 2010 Ms Doan, the Applicant, completed a form to enrol in the unit AEG5109 – Approaches to Teaching and Learning 1, (the Unit), at Victoria University. The Unit was listed for Semester 1, 2011.
Semester 1 commenced on 28 February 2011. The examination period for Semester 1 ended on 24 June 2011. Ms Doan was given a fail grade for the Unit. On 15 July 2013 Ms Doan lodged a Post Census Remission/re-credit of Debt in Special Circumstances Application in relation to the Unit together with two medical certificates.
On 11 October 2013 Victoria University notified Ms Doan that her application had been declined. Ms Doan requested a review of the decision. Victoria University affirmed the decision on 7 February 2014. On 5 March 2014 Ms Doan applied to this Tribunal for a review of the decision.
THE HEARING
Ms Doan represented herself at the hearing. Mr Shane Maundrell, a Departmental Principal Government Lawyer, represented the Department of Education, the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). For the Applicant, I took into evidence:
·The Applicant’s Statement of Facts, Issues and Contentions with six attachments (Exhibit A1);
·a letter from Ms Doan to the Tribunal dated 13 May 2014 with the attached medical certificate by Dr Tuan Doan dated 30 October 2013 (Exhibit A2); and
·a letter from Ms Doan to Mr Maundrell dated 1 August 2014 with two attachments (Exhibit A3).
For the Respondent I took into evidence an email from Sarah Sorsby of Victoria University dated 28 July 2014 with an attached School of Education End of Year Report (Exhibit R1).
LEGISLATION
The relevant legislation is contained in the Higher Education Support Act 2003 (the Act). Section 70-1 of the Act explains the system of Student Learning Entitlement (SLE):
Broadly speaking, a person starts with an SLE equivalent to 7 years full-time study. This is reduced as the person undertakes units of study as a Commonwealth supported student (but it can be re-credited in some circumstances).
Section 79-1(1) of the Act sets out the circumstances in which a higher education provider must re-credit a person’s SLE for a unit of study. The relevant sections are:
(c)the provider is satisfied that special circumstances apply to the person (see section 79-5); and
(d)the person applies in writing to the provider for re-crediting of the SLE; and
(e)either:
(i)the application is made before the end of the application period under section 79-10; 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 the period;
Section 79-5 makes provisions for the special circumstances of Section 79-1(1)(c).
Section 79-10 provides relevantly that:
the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.
On 17 January 2012 the Minister for Tertiary Education, Skills, Science and Research, The Honourable Chris Evans, made the Student Learning Entitlement (Repeal) Instrument 2011 (the Repeal Instrument), which was registered on 2 February 2012, in order to repeal the Student Learning Entitlement Guidelines (the SLE Guidelines). Neither the Amendment Act, nor the Repeal Instrument was expressed to preserve the operation of the SLE Guidelines in relation to units of study with a census date occurring before 1 January 2012.
Mr Maundrell submitted that in applying sections 79-1 and 79-5 of the Act the Tribunal should take Chapter 3 of the Administration Guidelines 2012 (the Administration Guidelines) into account in making its decision. He contended that Chapter 3 of the Administration Guidelines, in large parts, repeats what is set out in Chapter 5, Special Circumstances of the SLE Guidelines. Mr Maundrell submitted that the Department of Education has instructed higher education providers that, as a matter of policy, providers should apply the Administration Guidelines when making special circumstance decisions. He submitted further, that there are no cogent reasons for the Tribunal not to follow the Administration Guidelines and there are strong reasons for applying the Administration Guidelines.
In considering this submission I am aware of the relevant and long established case law regarding the need for strong reasons to apply before a decision maker can depart from properly established extant policy. In this case I have no reason to depart from the published departmental policy and accept that the special circumstances provisions of sections 79-1 and 79-5 of the Act apply in this case.
THE ISSUES
There is no dispute that Ms Doan applied in writing for the re-crediting of her SLE (section 79‑1(1)(d)).
The issues I have to decide are whether:
·special circumstances apply to Ms Doan (section79-1(1)(c));
·her application was made before the end of the application period (section79-1(1)(e)(i)), or
·it was not possible for her application to be made before the end of the application period (section79-1(1)(e)(ii)).
The Application Period
Section 79-10 relevantly provides that the application period:
is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.
Ms Doan contends that:
1 July 2013 was the last day for me to ask for the results. Hence study period of each subject was from the beginning of the subject to 1 July 2013. Moreover my Leave of Absence finished on 30 June 13. Therefore I got (sic) 12 – month period to apply for post census remission of HECS debt (T32, p179).
In his written contentions, Mr Maundrell submitted that as the examination period for Semester 1, 2011, ended on 24 June 2011, the application period for the Unit ended on 24 June 2012. In his oral submissions Mr Maundrell contended that the latest possible start for the application period was the publication of Ms Doan’s results for the Unit. He referred to Attachment 2 of Exhibit A1, Certified Statement of Results for Ms Doan, as at 20 October 2011. Accordingly, he contended that the application period ended on 20 October 2012.
Ms Doan offered no evidence in support of her contention that the application period was determined by the last day on which she could ask for the results.
Section 79-10 provides that the application period is 12 months after the end of the period during which the person was to undertake the unit. I do not accept that the period to undertake the unit can extend beyond the end of the examination period. At that point there is no further opportunity for a student to have input into or receive instruction from the provider; that is, to undertake the unit. However, I acknowledge Mr Maundrell’s implied concession that the period could possibly be extended to the publication of the results. As a result, in this case I find that the application period extends to 20 October 2012.
Ms Doan lodged her application for re-credit on 15 July 2013, clearly outside the application period in this case. Accordingly, I find that section 79-1(1)(e)(i) is not satisfied.
Was it Possible for Ms Doan to make the Application before the End of the Application Period?
Ms Doan testified that it was not possible for her to submit her application any earlier because of her medical condition and because of the inconsistency of her results.
Ms Doan referred to the medical certificate from Dr Tuan Doan dated 6 June 2014 which states:
This is to certify that Cherie has been treated for depression since 2007 and recurrent mouth ulcers from 27th April 2011 to 30th June 2011.
She has not been able to concentrate on her study due to her illness including anxiety and depression as well as painful apthous mouth ulcers. Her study has been adversely affected by her multiple medical conditions. She was unable to complete her Graduate Diploma of Education due to her painful mouth ulcers affecting her speech, which is an important component of her course.
In regard to the inconsistency of her results, Ms Doan said that although she received the documentary advice of the fail results of the Unit, her lecturer advised her in discussion that she had passed the Unit. Ms Doan contended that the inconsistency prevented her from lodging an application until it was resolved.
Mr Maundrell submitted that the word possible should have its ordinary meaning. He referred to the Concise Oxford Dictionary in which the meaning includes capable of … happening or being achieved. He referred also to the decision of the Tribunal in Quita Olsen and Secretary, Department of Industry, Innovation Science, Research and Tertiary Education [2012] AATA 824 where Senior Member Friedman found, at paragraph 25, that the plain and ordinary meaning of the word possible is whether something is capable of being done.
Mr Maundrell submitted that there was evidence that it had been possible for Ms Doan to complete routine administrative tasks. He submitted that she had successfully made other applications to the University. He contended that Ms Doan did not apply in regard to the Unit as she thought that she had passed the Unit, even though the evidence showed that she had failed.
Mr Maundrell referred to the decision in Madziva and Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2013] AATA 452 in which the applicant submitted until he received his tax return it was impossible for him to know there was a need to make an application in writing. Mr Maundrell contended that in this case the Tribunal should find, as in Madziva, that is was possible to make an application.
In considering the medical evidence I note that the doctor’s opinion related to Ms Doan’s ability to study and for a limited time to undertake the speech section of her course. There is no medical evidence of a limitation on Ms Doan’s ability to perform routine administrative tasks. Indeed the evidence shows that:
·on 26 September 2011 Ms Doan lodged a Late (Post Census) Amendment to Unit of Study Enrolment (T19, page 129),
·on 28 September 2011 Ms Doan lodged a Post Census Remission/Re-credit of Debt in Special Circumstances Application in regard to other units of study (T20, page 130), and
·on 13 August 2012 Ms Doan lodged an Application for Intermission with an attached medical certificate (T24, page 137).
From the evidence I do not accept that it was not possible for Ms Doan to lodge her application in relation to the Unit by reason of her medical condition.
In regard to Ms Doan’s understanding of her results, I do not accept that any perceived inconsistency prevented her from lodging her application. Indeed, any inconsistency should have acted as a trigger to lodge an application in order to resolve the inconsistency. In any case, as in Madziva, an inconsistency of information does not act to make it not possible for Ms Doan to lodge the required application.
I find that was possible for Ms Doan to make an application before the end of the application period. Accordingly, I do not waive the requirement that the application be made before the end of that period as provided in section 79-1(1)(e)(ii) of the Act.
I have found that Ms Doan’ circumstances do not satisfy either of the sub-sections of section 79-1(1)(e). Accordingly, Ms Doan does not meet the provisions of section 79‑1(1) by which the higher education provider must re-credit Ms Doan’s SLE for the Unit in question.
I affirm the decision of Victoria University to not approve Ms Doan’s application.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 35 (thirty‑five) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member [sgd]........................................................................
Associate
Dated 21 August 2014
Date of hearing 1 August 2014 Applicant In person Advocate for the Respondent Mr Shane Maundrell, Principal Government Lawyer
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