Chow and Secretary, Department of Education and Training
[2016] AATA 880
•8 November 2016
Chow and Secretary, Department of Education and Training [2016] AATA 880 (8 November 2016)
Division
GENERAL DIVISION
File Number
2015/6836
Re
Zac Han Chow
APPLICANT
And
Secretary, Department of Education and Training
RESPONDENT
DECISION
Tribunal Member K Millar
Date 8 November 2016 Place Adelaide The decision under review is affirmed.
....................[Sgd].............................................
Member K Millar
CATCHWORDS
HIGHER EDUCATION – Student assistance – HECS-HELP – Application for repayment of student contribution – Period for valid application – Whether special circumstances – Decision under review is affirmed.
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 36-20, 36-21
CASES
Olsen v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 824
Juresic v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2013] AATA 338
Brown v Secretary, Department of Education and Training [2015] AATA 518Madziva v Secretary, Department if Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2013] AATA 452
SECONDARY MATERIALS
The Administration Guidelines 2012
REASONS FOR DECISION
Member K Millar
8 November 2016
BACKGROUND
Mr Chow is studying a Bachelor of Engineering (Mechanical) at the University of South Australia. In February 2014 he enrolled in Mechanical Engineering Project 1, and paid the student contribution amount for this subject. The census date for this subject was 31 March 2014.
Mr Chow withdrew from this subject after the census date. He says it was only after the census date he discovered there was an expectation that he had completed a third year subject, Computer Aided Engineering Practice, before undertaking Mechanical Engineering Project 1.
On 25 June 2015 Mr Chow applied to the University under s 36-20 of the Higher Education Support Act 2003 (the Act) for the repayment of the student contribution amount in special circumstances, on the basis that he did not know there were any prerequisites for the subject until after the census date.
Under s 36-20 of the Act, where a person does not complete a subject to be repaid the student contribution amount the person must, among other things, apply for the repayment within a specified timeframe and special circumstances must apply to the person.
The University acknowledged receipt of Mr Chow’s application, and on 28 July 2015 made a decision to refuse his application. Mr Chow requested a reconsideration of this decision. While the University allowed Mr Chow additional time in which to request a reconsideration of the decision, it then failed to reconsider the decision within 45 days. As a result, the decision was taken to be confirmed.
Mr Chow has applied to this Tribunal for a review of the decision to refuse his application for repayment of his student contribution amount. The University submits that he did not apply for a repayment of his student contribution amount within the required time, and in the alternative that there no special circumstances.
In issue in his matter is whether the application was made within the required time and if so, whether special circumstances apply to Mr Chow.
JURISDICTION
Under s 212-1 this Tribunal can review decisions that are reviewable under s 206-1 of the Act and have been confirmed, varied or set aside under s 209-5 or s 209-10 of the Act.
Section 206-1 sets out decisions that are reviewable under the Act. These include a decision made by a higher education provider that s 36-20 does not apply to the person. A decision that s 36-20 did not apply to Mr Chow was made by the University on 28 July 2015.
Mr Chow requested a reconsideration of this decision on 31 August 2015, which was outside the required 28 day timeframe. On or about 2 October 2015 the University extended the time in which he could request a reconsideration, but then failed to reconsider the decision. As a result, at the end of 45 days, the decision was taken to have been confirmed (s 209-10(6)).
Mr Chow confirmed at hearing that he is seeking repayment of his fees.
As a reviewable decision has been made and the reconsideration is taken to have confirmed the decision, Mr Chow may apply to this Tribunal for a review of the decision.
CONSIDERATION
A person who is a Commonwealth Supported Student incurs a student contribution amount as a fee for the course. This can be paid either up front, or through a loan from the Commonwealth or a combination of both upfront fees and a loan. In this case Mr Chow paid his fees up front.[1]
[1] Exhibit R1 T9, p129.
If the person does not complete the requirements for the unit, he or she can apply for the repayment of the student contribution amount or the remission of his or her HECS-HELP debt under s 36-20 of the Act. If the circumstances in s 36-20 apply, the University must repay to the person any student contribution amounts paid by the person and pay to the Commonwealth any HECS-HELP assistance to which the person was entitled for the unit (s 36-20(2)).
The requirements under s 36-20 are:
(a)the person has been enrolled as a Commonwealth supported student with the provider in a unit of study; and
(b)the unit would, if completed, form part of a course of study undertaken with that provider or another higher education provider; and
(c)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
(d)the provider is satisfied that special circumstances apply to the person (see section 36-21); and
(e)the person applies in writing to that provider for either or both:
(i)the repayment of any amounts that the person paid in relation to his or her student contribution amount for the unit; or
(ii)the remission of the person's HECS-HELP debt in relation to the unit; and
(f)either:
(i)the application is made before the end of the application period under section 36-22; 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.
In issue in this matter are subsections 36-20(d) and (f).
Was the application made in the required time?
Subsection 36-20(f) requires the application to be made within the time specified in s 36-22 of the Act, or that the provider has waived the requirement 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 36-22 states:
(1)For the purposes of subparagraph 36-20(1)(f)(i), if:
(a) the person has withdrawn his or her enrolment in the unit of study; and
(b) the higher education provider gives notice to the person that the withdrawal has taken effect;
the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.
(2)If subsection (1) does not apply, 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.
In this case, Mr Chow withdrew from Mechanical Engineering Project 1 on 2 May 2014.[2] His written application for an amendment to his enrolment and fees in special circumstances has two dates on the form.[3] There is an illegible stamp and handwritten date of 25 June 2015 on the form and a stamp “received” with the date 29 June 2015. The decision of the University records that the application was received by the student finance team on 29 June 2015.
[2] Exhibit R1, T12 p132.
[3] Exhibit R1, T13 p133.
While nothing turns on the precise date of receipt in this case, I consider the relevant date is the date Mr Chow provided the application to the University, and not the date it was provided to the student finance team. This is because the date to be considered under paragraph 36-20(1)(e) of the Act is the date the application is made to the higher education provider, and not a specific team within that higher education provider. In this case, I find the application was received by the University on 25 June 2015.
The University acknowledges it did not provide a written notice to Mr Chow that the withdrawal had taken effect, however argues that Mr Chow knew that his 12 months would end 12 months after the date he withdrew and this amounts to constructive notice of his withdrawal. The University relies on a form signed by Mr Chow when he enrolled in which he agrees to familiarise himself with and abide by the policies of the University.[4] The policy of the University on student fees and loans states that applications for amendment to enrolment and fees in special circumstances must be made within 12 months of the student undertaking or withdrawing from the course.[5] The University submits the combination of the signed form and the policy amount to constructive notice of withdrawal.
[4] Exhibit R1, page 35.
[5] Exhibit R1, page 50, paragraph 22.3.
The University also relies on a statement at the top of the application form for consideration of special circumstances that applications must be made within 12 months from the date the person withdrew from the course.[6]
[6] Exhibit R1, T13 page 133.
The University referred to four cases of this Tribunal in support of its submission that Mr Chow had received a constructive notice of his withdrawal. In the case of Olsen v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education[7] Ms Olsen conceded she had not applied within the application period, and I do not consider this case assists me to determine the application period in this case. In Juresic v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [8] Ms Juresic similarly acknowledged she did not apply until after the application period has ended, and argued instead that she had withdrawn at an earlier point before the census date.
[7] [2012] AATA 824.
[8] [2013] AATA 338.
In Brown v Secretary, Department of Education and Training[9] Ms Brown was not given notice that the withdrawal had taken effect. She was informed some three years after the withdrawal that she had withdrawn. In these circumstances, it was found that the 12 month period ended 12 months after the period during which she was to undertake the units in question,[10] which is the alternative that applies if written notice is not provided.
[9] [2015] AATA 518.
[10] Paragraphs 32 and 33.
In Madziva v Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [11] Dr Madziva had not withdrawn from his course and it was accepted that the time in which he had to lodge his application was 12 months after the period in which he was to undertake the units. In issue was whether Dr Madziva could withdraw and apply for a fee remission in special circumstances by telephone, as there was no record of him withdrawing from the subject. This is unlike the facts of this case where neither the date Mr Chow withdrew nor the date he applied for the repayment of his student contribution amount is in issue.
[11] [2013] [2013] AATA452
The words of the provision are clear, and require that the person to be given notice that the withdrawal has taken effect. The notice must specify the date the withdrawal took effect. Neither the policy of the University nor a statement on an application form is a notice. Even if either of these could be regarded as notice of the withdrawal, neither specify the date the withdrawal took effect as required by s 36-22(1).
As Mr Chow has not been provided with notice that his withdrawal has taken effect and the date it took effect, s 36-22(1) does not apply and under s 36-22(2) of the Act the application period ends 12 months after Mr Chow undertook, or was to undertake, the unit.
Mr Chow was to undertake the unit in study period 2 of 2014. The University calendar shows this study period went from 26 February 2014 until 5 July 2014. As a result, I consider the twelve month period in which Mr Chow had to apply ended on 6 July 2015. He applied on 25 June 2015, and his application occurred within the application period.
Are there special circumstances?
A requirement for the student contribution amount to be repaid by the University is if special circumstances apply to the person (s 36-20(1)(d)).
Section 36-21 sets out when special circumstances apply to the person, and require the decision maker to be satisfied that circumstances that apply:
(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; and
(c)make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
The census date for the unit was 31 March 2014.
Subsection 36-21(2) states that Administration Guidelines may specify circumstances in which an education provider will be satisfied of these matters, and a decision must be in accordance with these guidelines.
The Administration Guidelines include at cl 3.5.1:
“…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.”
Clause 3.5.5 goes on to state that the situation must also be “unusual, uncommon or abnormal.”
Mr Chow said had he realised that Computer Aided Engineering Practice was a pre-requisite for the course he would not have enrolled in the course. He provided a 2016 course overview[12] for the subject that shows there is now a prerequisite to have completed 99 units of an Engineering degree and a co-requisite of Engineering Research Practice for the course. Mr Chow said he did not realise he was required to have Computer Aided Engineering Practice until after the census date and relies on this as special circumstances.
[12] Exhibit A1.
The process for undertaking Mechanical Engineering Project is described in Professor Fielke’s statement.[13] Academics nominate projects to the course co-ordinator, Dr Ke Xing, who then advertises the projects to students. If a student is interested in a project he or she approaches the supervisor to discuss the topic and the project direction. Professor Fielke states that for some projects Computer Aided Engineering Practice would be a prerequisite, and in particular most of his projects would require this subject, but for other supervisors it is not required. Professor Fielke states it would not be possible to list prerequisites for all the projects that are undertaken. He states that since 2015 there has been a minimum number of units that must be completed before commencing the project. Prior to 2015 he states it was understood by students and staff that this subject was a final year project which was to be completed in the final year.
[13] Exhibit R2.
Dr Ke Xing provided a statement[14] in which he says he was the course co-ordinator for Mechanical Engineering Project 1 in study period 2, 2014. Dr Ke Xing states Computer Aided Engineering Practice was not stipulated as a prerequisite for this subject. He did not stop anyone enrolling in the Mechanical Engineering Project 1 if they had not completed Computer Aided Engineering Practice, but this would be essential for some projects.
[14] Exhibit R3.
Mr Chow said when he enrolled in 2014 he was waiting for a decision on which subjects would be given credit from his TAFE studies, and looked for subjects with no prerequisites. As the Mechanical Engineering Project 1 had no prerequisites he enrolled in this subject and went to the seminars. He looked at the project lists however nothing interested him. He says he had received an email that new projects would be posted, and when these new projects were posted they included a project for SA Police which did interest him. He went to see Dr Ke Xing and was told that there was no information about this project yet as there was little interest in it. He also went to see Professor Fielke about one of his projects, however considerable computer simulation was required and he had not completed the subject he needed for computer simulation. Mr Chow says he was told by Professor Fielke that he should have completed the Computer Aided Engineering Unit. Two days after this he withdrew from the course.
Professor Fielke says he has no record or recollection of meeting with Mr Chow in 2014, and says Mr Chow may have knocked on his door and asked for a discussion rather than making an appointment. He states he assumes he would have tried to help Mr Chow with his dilemma of starting late.
The documents provided by the University include an email from Dr Ke Xing dated 26 March 2014 to students who had not registered their final year project.[15] This notes the project for SA Police was added to the project list on the same date as the email. Mr Chow said he believed this email had been sent to everyone who had enrolled in the subject but was not sure whether he had received it. The date of this email shows the SA Police project was posted before the census date, and not after the census date as suggested by Mr Chow.
[15] Exhibit R3, Attachment A.
An email from Mr Chow on 8 April 2014 to Dr Ke Xing[16] states he had accidentally forgotten about submitting his project proposal as he was concentrating on an assignment for another subject, and asked if he could still submit the proposal. A further email from Mr Chow dated 14 April 2014[17] requests a meeting with Dr Ke Xing to further discuss a project he had spoken about with Dr Ke Xing about “the other day.”
[16] Exhibit R1, T10 p 130.
[17] Exhibit R1, T11 p 131.
The main difficulty for Mr Chow is that the Administrative Guidelines state a situation is beyond the person’s control if a reasonable person would not consider it is due to the person’s action or inaction either direct or indirect. In Mr Chow’s case he failed to meet with a supervisor or nominate a project until after the census date.
Mr Chow said he knew early on in the year that he had to apply for approval of the project by the course coordinator. On being asked why he did not approach a supervisor earlier, he said he was trying to work out how to apply for projects. He first approached Dr Ke Xing about a project, being the SA Police project, after the census date. He did not approach a supervisor before the census date because he was working on another assignment. He said he believed he had done what he needed to do, and had checked the requirements for the course. He did not have a project approved by a supervisor because at the time there were no projects he wanted to do.
As Mr Chow did not seek approval of a project or discuss with a potential supervisor the requirements for the projects before the census date, he has failed to take action to apprise himself of his ability to do the final year project or to find out about what would be required for this course. The situation he identified, being the need to have completed Computer Aided Engineering Practice, for the project supervised by Professor Fielke would have been apparent before the census date if he had taken action to discuss this project before the census date.
As the situation was due to Mr Chow’s inaction in discussing a project with a supervisor, it was not beyond his control as described in cl.3.5 of the Administrative Guidelines. As a result the situation does not meet the definition of special circumstances in s 36-21(1)(a) of the Act. It follows that special circumstances do not apply to Mr Chow as required by s 36-20(1)(d) of the Act, and the University does not have to repay his student contribution amount.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Member K Millar .....................[Sgd]...........................................
Administrative Assistant
Dated 8 November 2016
Date(s) of hearing 6 September 2016 Applicant In person Advocate for the Respondent Mr G Brackenreg Solicitors for the Respondent Meyer Vandenberg Lawyers
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