Confidential and Secretary, Department of Education
[2013] AATA 707
•3 October 2013
[2013] AATA 707
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4748
Re
Confidential
APPLICANT
And
Secretary, Department of Education
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 3 October 2013 Place Melbourne The Tribunal affirms the reviewable decision made on 24 August 2012.
.........[sgd Egon Fice]...............................................................
Egon Fice, Senior Member
HIGHER EDUCATION – Re-credit of FEE-HELP – Special circumstances – Removal of a fail grade – Reviewable decisions under the Higher Education Support Act – Administration Guidelines
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 34J
Higher Education Support Act 2003 (Cth) ss 104-1, 104-25, 104-30, 104-35, 206-1, 206-5, 209-10, 212-1
Guidelines
Administration Guidelines 2012, made pursuant to s. 238-10 Higher Education Support Act 2003 (28 November 2011)
FEE-HELP Guidelines, made pursuant to s. 238-10 Higher Education Support Act 2003 (2 April 2013)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Salemi v Mackellar (1977) 137 CLR 396
Secondary Materials
Dorland’s Illustrated Medical Dictionary (27th ed, 1988)
Open Universities Australia, (Student Support Services – Complaints Management and Special Consideration) viewed on 24 September 2013
Pearce D C and Geddes R S, Statutory Interpretation in Australia (7th ed, LexisNexis Butterworths, 2011)
RMIT University, (Staff – Policies and Procedures – Academic and research – Assessment) viewed on 24 September 2013
REASONS FOR DECISION
Egon Fice, Senior Member
3 October 2013
I have agreed that review of the decision in this matter can be adequately determined in the absence of parties and both parties consented to a review being determined without a hearing in accordance with s. 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The applicant was a university student enrolled with Open Universities Australia (OUA) in SCB140 Introduction to Microbiology, Immunology & Genetics (the unit), for study period 3, 2011. The applicant was engaged in Full Time Study with FEE-HELP assistance and the census date for the unit was 19 September 2011. The census date in respect of a unit is the last date following the commencement of teaching in that unit on which a student may withdraw without financial penalty. Although the applicant was enrolled with OUA, the academic provider of the unit was the Royal Melbourne Institute of Technology (RMIT or RMIT University).
The applicant was, as part of that unit, required to attend a four day practical assessment (the practical) for the unit. She attended the first day of the practical but was absent for the second, third and fourth days due to claimed illness.
On 16 March 2012 the applicant applied to RMIT University for special consideration to have her practical assessment deferred. After consideration, on 23 March 2012 RMIT decided to cancel the applicant’s application for special consideration. While that is the description used in the documents, it simply means that her application for special consideration was rejected without the merits being assessed. RMIT determined that the application was made out of time.
On 2 July 2012 the applicant applied to OUA for special circumstances relief seeking: a refund or waiver of withdrawal penalties; a re-credit of FEE-HELP; and a refund of the unit fee. On 13 August 2012 OUA wrote to the applicant informing her that her application was declined explaining that OUA had not approved her application for re-credit of FEE-HELP balance.
On 13 August 2012 the applicant requested a review of the initial decision made by OUA and on 24 August 2012 a chief executive officer of OUA confirmed the initial decision stating: I have therefore not approved your appeal for re-credit of FEE-HELP balance.
On 23 October 2012 the applicant lodged her application with the Tribunal for a review of the OUA decision made on 24 August 2012. In her application to the Tribunal she attached a letter in which she said, I am applying to have my fees refunded and fail grade removed for a university unit… .
ISSUES
The issues that I am required to determine in this matter are:
(a)whether the Tribunal can have a fail grade removed from the applicant's university record;
(b)whether there are special circumstances that apply to the applicant; and
(c)if the answer to (b) is in the affirmative, whether the applicant is entitled to a re-credit of FEE-HELP for the unit.
REVIEWABLE DECISIONS UNDER THE HIGHER EDUCATION SUPPORT ACT 2003 (THE HES ACT)
Although the applicant has sought to have her fail grade removed from the university record, that is not a reviewable decision as far as this Tribunal is concerned. The Tribunal is restricted by reason of what is contained in the AAT Act. In particular, s. 25 provides:
25 Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
As I have stated above, the academic provider in this matter is RMIT University. Students' assessments are subject to the university regulations and policy. RMIT Regulation 5.4.1 deals with the assessment and academic progress. Clause 2.4 provides that where a student believes their performance in any form of assessment has been severely affected by illness or other cause, they may apply through the relevant application system to the Academic Registrar for an assessment adjustment in accordance with the relevant policy or procedure. In fact, the FEE-HELP Guidelines, which is a legislative instrument, made on 2 April 2013 by the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education sets out in some detail the requirements for OUA (Chapter 3). Clause 3.15.20 provides:
OUA must ensure that all of the students who access a unit of study through OUA have their complaints about academic matters dealt with through the academic grievance procedure of the higher education provider that has made the unit available through OUA.
There is no Commonwealth statute (enactment) which deals with assessments or assessment adjustments made by universities or higher education providers. Therefore, this Tribunal has no power to embark upon the review of that decision. The application to re-credit the applicant's FEE-HELP liability in the amount of the unit fee is however reviewable by the Tribunal.
Section 104-1 of the HES Act sets out the entitlements to FEE-HELP. Relevantly, it provides that a student is entitled to FEE-HELP assistance for a unit of study if the unit is one to which access was provided by OUA. There was no dispute that the unit in question, SCB 140, was one to which the student had access through OUA. There was also no dispute that the applicant applied for Commonwealth assistance in relation to that unit.
Part 5-7 of Division 206 of the HES Act sets out which decisions are subject to review. Relevantly, s. 206-1, Item 2A provides:
2A
Refusal to re-credit a person’s *FEE-HELP balance
subsection 104-25(2)
(a) *Open Universities Australia; or
(b) if the *Secretary made the decision to refuse the re-crediting—the Secretary
Section 206-5 provides for a person to apply to a decision maker (in this case OUA) to reconsider the initial decision to refuse to re-credit the applicant's FEE-HELP balance.
The applicant requested reconsideration of a reviewable decision and in accordance with s. 209-10 of the HES Act, the reviewer decided to confirm the decision.
Part 5-7 of Division 212 in the HES Act provides for decisions that are subject to Tribunal review. Section 212-1 states:
An application may be made to the Administrative Appeals Tribunal for the review of a *reviewable decision that has been confirmed, varied or set aside under section 209-5 or 209-10.
Therefore, the Tribunal clearly has the power to review a decision by OUA to refuse to re-credit a person’s FEE-HELP balance. The Tribunal is however limited by Division 212 of the HES Act which sets out the decisions which are subject to review. The award of a fail grade is not a decision that this Tribunal can review under the HES Act.
RE-CREDITING A PERSONS FEE-HELP BALANCE AND SPECIAL CIRCUMSTANCES
Section 104-1 of the HES Act sets out the entitlement to FEE-HELP assistance. A student is entitled to FEE-HELP assistance for a unit of study if he or she meets certain requirements including the fact that the unit is, or is to be, undertaken as part of a course of study; or is a unit access to which was provided by OUA.
A student may be entitled to have their FEE-HELP balance re-credited with an amount equal to the amounts of FEE-HELP assistance the person received for the unit of study where, amongst other things, the student has not completed the requirements for the unit in the period during which the person undertook or was to undertake the unit; and either the higher education provider (where access to the course is provided directly by that body) or OUA is satisfied that special circumstances apply to the person.
In fact, s. 104-25 (1) deals with the circumstances where a higher education provider (bodies listed in the tables set out under Subdivision 16-B which includes RMIT University) receives a payment from the Commonwealth; while s. 104-25 (2) deals with the circumstances where OUA receives the payment assistance. Those subsections are identical except for the fact that s. 104-25 (1) is expressly stated not to apply where access to the unit was provided by OUA (s. 104-25 (1) (aa)). Section 104-25 (2) provides:
104-25 Main case of re-crediting a person’s FEE-HELP balance
(2) *Open Universities Australia must, on the *Secretary’s behalf, re-credit a person’s *FEE-HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person has received for a unit of study if:
(a) access to the unit was 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) Open Universities Australia is satisfied that special circumstances apply to the person (see section 104-30); and
(d) the person applies in writing to Open Universities Australia for re-crediting of the FEE-HELP balance; and
(e) either:
(i) the application is made before the end of the application period under section 104-35; or
(ii) Open Universities Australia 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.
Section 104-35 sets out the time limits which apply to applications for the re-crediting of a person's FEE-HELP balance. Sections 104-35 (1A) and (2) deal with the case where access to the unit was provided by OUA. They provide:
(1A) If:
(a)the person applying under paragraph 104-25(2)(d) for the re-crediting of the person's *FEE-HELP balance in relation to a unit of study has withdrawn from the unit; and
(b)*Open Universities Australia 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 subsections (1) and (1A) do not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.
In determining whether there are special circumstances that apply to the applicant, OUA (and now the Tribunal standing in the shoes of the decision maker) must be satisfied of the requirements set out in s. 104-30 (3) of the Act which provides:
104-30 Special circumstances
(3) For the purposes of paragraph 104-25(2)(c), special circumstances apply to the person if and only if *Open Universities Australia 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.
The effect of the provisions dealing with the re-crediting of a person's FEE-HELP can be simply stated as follows:
(a)where a student withdraws from a unit prior to the census date, no FEE-HELP debt will be incurred for the unit;
(b)if a student seeks to withdraw from the unit after the census date, to avoid incurring a FEE-HELP debt, he or she must satisfy the special circumstances provisions in the HES Act;
(c)to be assessed for special circumstances, the student must have successfully withdrawn from the unit or the study period for the unit must have ended and the student received a final grade;
(d)the application made by a student to OUA for re-crediting of the FEE-HELP balance must be made in the period of 12 months after the day specified in the notice provided by OUA that the withdrawal has taken effect; and
(e)if the student has not withdrawn from the unit, the application must be made to OUA for re-crediting the FEE-HELP balance within the period of 12 months from the last day of the study period in which the student was enrolled.
WAS THE RE-CREDITING APPLICATION MADE WITHIN 12 MONTHS
The applicant lodged with OUA a special circumstances application form on 2 July 2012. On that form she ticked all of the options indicating that she was applying for a refund or waiver of withdrawal penalties; a re-credit of FEE-HELP; and refund of the unit fee due to withdrawing after the census date from units paid up front. In fact the evidence before me does not disclose any penalties having been awarded against her nor that she had prepaid the tuition fee for that unit. It seems to me that the only application being made by the applicant was for a re-credit of FEE-HELP balance.
I had in evidence a study guide for the unit in question. That unit was scheduled to commence on 29 August 2011 and it concluded on 27 November 2011. Also, on her special circumstances application form the applicant has noted that she failed the unit. Amongst the Tribunal documents was an Academic history from RMIT University for the unit. It discloses a grade of NN (also known as a fail) and the date graded is listed as 2012-06-28. The fail grade is confirmed in a Record of Results from Open Universities Australia. Therefore, I find that the applicant's study period for unit SCB 140 ended on 27 November 2011 or, on 10 February 2012 because she was permitted to defer the practical assessment to February 2012, and she received a final grade for the unit on
28 June 2012. There was no evidence before me that the applicant had withdrawn or attempted to withdraw from the unit at any time prior to lodging her special circumstances application form. Therefore, I find that the 12 month application period set out in s. 104-35 (2) applies to the applicant and she was required to make the application for a re-credit of her FEE-HELP balance either by 26 November 2012 or possibly 9 February 2013. Whichever is the correct date, her application was clearly made within the application period and is therefore valid.SPECIAL CIRCUMSTANCES CLAIMED BY THE APPLICANT
The matters which must be considered in determining whether special circumstances exist for a student who has been given access to a course of study through OUA are set out in s. 104-30 (3) of the HES Act. I have set out the three matters which must be considered. However, I note that the decision dated 13 August 2012 made by the Special Circumstances Officer with OUA Student Administration, when rejecting the applicant's application to be given consideration due to special circumstances, referred to s. 3.5 of the Administration Guidelines. In fact, in its statement of facts, issues and contentions lodged with the Tribunal on 26 July 2013, the respondent contended that the Tribunal should take into account the Administration Guidelines made by the Minister on
28 November 2011.With respect to the Principal Legal Counsel for the respondent, Mr S Maundrell, who prepared the statement of facts, issues and contentions, there appears to be some confusion between the application of special circumstances provisions in respect of academic complaints and those which relate to solely administrative issues or non-academic complaints where a student has gained access to a study course or unit through OUA.
As I have already said above, the FEE-HELP Guidelines deal with the requirements which apply to OUA. Amongst those requirements are the following:
3.15.10 OUA must have:
(a)a grievance procedure relating to non-academic matters for dealing with complaints by students who access unit/s of study through OUA, and persons who seek to access unit/s of study through OUA; and
(b)a review procedure for dealing with review of decisions made by OUA relating to assistance under Part 3-3 of the Act.
3.15.15 OUA must ensure that its:
(a)grievance procedure relating to non-academic matters complies with the requirements that are specified in the Higher Education Provider Guidelines for the non-academic grievance procedures of higher education providers; and
(b)review procedure for dealing with review of decisions made by OUA relating to assistance under Part 3-3 of the Act complies with the requirements that are specified in the Higher Education Provider Guidelines for the review procedures of higher education providers for decisions in relation to assistance under Chapter 3 of the Act.
3.15.20 OUA must ensure that all of the students who access a unit of study through OUA have their complaints about academic matters dealt with through the academic grievance procedure of the higher education provider that has made the unit available through OUA.
The applicant plainly had two complaints. The first dealt with academic matters, that is, the grade she should have been given for the unit or, alternatively, that she should have been given a deferred opportunity to complete the practical work. The second was that her FEE-HELP balance should be re-credited in the amount of the fees which applied to the unit in question. That is a non-academic matter. OUA in fact has procedures for dealing with both non-academic and academic complaints. Its website contains the following:
Complaints fall into two categories:
1.Non-academic issues – non-academic complaints usually relate to administrative issues, such as enrolments, tuition fees, study planning and advice provided by OUA. Our Student Solutions Team investigates all non-academic complaints and provides a resolution within 21 days wherever possible. Where the complexity of an issue means that this timeframe is not possible, we will provide progressive updates of any developments.
2.Academic issues – academic complaints relate to the services or behaviour of a course or unit provider, and may include issues with curriculum, tutors, assessment results, recognition of prior learning and prerequisite exemptions. We refer all academic complaints to the relevant provider for resolution. While these issues are subject to the complaint process of each provider, we can provide guidance regarding a provider's complaint process and, when the provider informs us, we can keep you abreast of any developments.
The only matter with which this Tribunal is concerned is the non-academic matter. It is therefore not concerned with the procedures adopted by RMIT University under its regulations and policy dealing with assessment and academic progress. In fact, a careful reading of the HES Act makes it clear that the Administration Guidelines do not apply where a person has applied in writing to OUA for re-crediting of the FEE-HELP balance. The only reference to the Administration Guidelines is under s. 104-30 (2) which provides:
(2) If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of the 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 such guidelines.
By way of distinction, s. 104-30 (3), which applies specifically to OUA, makes no mention of the Administration Guidelines. In this matter, the decision regarding re-crediting of the FEE-HELP balance was one made by OUA following an application to that body. OUA is not a higher education provider. Subsection (2) does not apply to it. Had the applicant enrolled in the unit directly through RMIT University, it would have. That is not the case here.
Although the respondent in its statement of facts, issues and contentions accepted that the Administration Guidelines did not apply to OUA as a legislative instrument, it submitted there were no cogent reasons why the Tribunal should not follow those guidelines in exercising its discretion, having regard to the desire to retain consistency. The respondent referred to three prior decisions by the Tribunal where this approach was adopted.
With respect to Mr Maundrell, not one of the three prior AAT decisions to which he referred dealt with OUA. They dealt with a higher education provider. Furthermore, the reference to the Administration Guidelines in s. 104-30 (2) which applies to a decision of a higher education provider, and its absence in s. 104-30 (3) which applies to OUA, appears to invoke a statutory interpretation principle which carries the Latin tag expressio unius est exclusio alterius (an express reference to one matter indicates that other matters are excluded). As DC Pearce and RS Geddes state in their text Statutory Interpretation in Australia, seventh edition, at 4.31:
It is a reasonable assumption that where legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently.
A good example of the application of this principle is found in the High Court of Australia (Barwick CJ, Gibbs, Stephen, Jacobs, Aickin JJ and Murphy J dissenting) decision in Salemi v Mackellar (1977) 137 CLR 396. The Court was concerned with interpreting the deportation provisions set out in the Migration Act 1958. The Migration Act set out different procedures depending on whether the person to be deported was a prohibited immigrant or whether he was an alien or other immigrant. The Plaintiff argued that the procedure which applied to prohibited immigrants, which provided for a hearing, should also be applied to aliens although the Migration Act did not provide for a hearing in respect of aliens. Gibbs J said, at 421:
The scheme of the Act shows that the Parliament has drawn a sharp distinction between the deportation of prohibited immigrants on the one hand, and of aliens and other immigrants on the other hand. The Act gives to the Minister in the case of a prohibited immigrant a power which is on its face unfettered and which stands in contrast to the conditional and control powers given by ss 13 and 14. Having regard to all these considerations, I conclude that the power given by s. 18 is not subject to an obligation to observe the principles of natural justice, and that the Minister may issue a deportation order under that section without first giving the person affected an opportunity to be heard.
Similarly, Stephen J said, at 429:
A proper understanding of the nature of the power conferred by s. 18 requires some examination of the whole of the Division of which it forms an integral part. Such an examination discloses a coherent and consistent scheme by which persons who may be deported are classified depending upon national status and upon the circumstances in which they first entered or now remain in Australia. The Act then prescribes different circumstances applicable to each such classification which determine whether, and by what procedure, a person within any classification may be deported.
In my opinion, the HES Act makes a clear distinction between higher education providers and OUA. That distinction is maintained throughout Part 3-3 which deals with FEE-HELP assistance. The provisions dealing with re-crediting a person’s FEE-HELP balance in s. 104-25 (1) apply only to higher education providers while those which apply only to OUA are set out in s. 104-25 (2). A similar distinction is maintained in
s. 104-30 which deals with special circumstances. Furthermore, there are discrete FEE-HELP Guidelines; Chapter 3 being devoted solely to the requirements for OUA. Therefore, I am of the view that it is those Guidelines which must be applied in the case of OUA. It was not intended that the Administration Guidelines apply to OUA.
OUA in fact has review procedures which are explained on its website. It says this about special circumstances:
Special circumstances are serious events beyond your control that occurred after the specified withdrawal date, affecting your ability to continue with your studies.
These can include:
· Course related reasons involving a change in unit requirements that disadvantage due to the extent that you are unable to complete your studies;
· Medical reasons in which a medical condition became known or changed after the Census Date and prevented you from completing your studies;
· Involuntary change in employment conditions, such as changes to your employment status or arrangements that were beyond your control, which meant you were unable to continue your studies; or
· Family or personal reasons, such as death or severe medical problems or unforseen financial difficulties within your family, which made it unreasonable for you to continue your studies.
Unfortunately, the decision made by OUA in its letter of 13 August 2012 conflates the special circumstances provision application for re-crediting the FEE-HELP balance in accordance with its procedures and the procedures adopted by RMIT University under its regulations dealing with assessment and academic progress. That error was also perpetuated by the review decision made on 24 August 2012. However, it has no impact on my decision because I am not concerned with the reasons for the decision made by OUA, but rather, whether it was the correct or preferable decision on the material before me. A review by this Tribunal is by way of hearing de novo (anew, afresh, over again). As the Full Court of the Federal Court of Australia said in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, at 68:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.
In other words, I need to examine the evidentiary material before me regarding the claimed special circumstances and determine whether that material satisfies the special circumstances conditions set out in s. 104-30 (3).
In a statement provided by the applicant to the Tribunal on 3 September 2013, she said that she was required to attend a practical assessment for the unit (SCB 140) from
6 February 2012 to 10 February 2012. The applicant attended the practical on 6 February 2012. However, she was absent on 7 February 2012 and provided a medical certificate in respect of that absence. She said nothing about what happened on 8 February 2012 but again provided a medical certificate for 9 February 2012. As a result of her absence on the second day of the practical, the applicant claims she was told by her lecturer that she could not progress. However, the documents provided by the respondent indicate that the situation was far more complicated than stated by the applicant. I will commence by outlining the events directly relevant to the practical which commenced on 6 February 2012. There was another practical subject which the applicant did not attend on
2 February 2012. While not directly relevant to the matter before me, it does indicate the applicant's understanding of the special circumstances process and, perhaps, a pattern of behaviour in the course of her tertiary studies.
The microbiology practical week was scheduled to commence on 7 November 2011 at RMIT city campus. According to the applicant, she sent an e-mail to her lecturer on
29 September 2011 requesting that the practical be deferred to study period 4 (SP 4). While her lecturer did not appear to have received the e-mail of 29 September 2011, she (her lecturer) sent an e-mail on 29 October 2011 stating that she had expected the applicant for SP 3. The lecturer nevertheless indicated that the next practical would be from 6 February 2012 to 10 February 2012. On 30 October 2011 the applicant's lecturer told her she could do the practical in SP 4. In responding, the applicant said: Thanks for letting me know, I will make sure I apply by special consideration in the future if I need to.The applicant obtained a medical certificate from Dr Chai-Ling Ooi on 7 February 2012 which simply stated that the applicant had a medical condition and based on that condition/patient's statement, she is/was unable to attend work/school only on 7 February 2012. The applicant then sent an e-mail to her lecturer on 9 February 2012 at 8:21 AM in which she said:
I am unable to come to the remaining pracs as I am having issues with arrythmia [sic], I am going to my Doctor today to see what the cardiologist has said about my ECG. Is it possible to be exempt if I show an understanding of the pracs? It is fairly basic, I have done most of these in previous schooling. Am I able to send the prac manual to you?
The applicant's lecturer responded at 9:45 AM on the same day stating she was sorry to hear about her medical condition. She then said:
Unfortunately you do need to demonstrate competency so without marking you it will not be possible to pass you. Get a medical certificate and pop in special consideration and we will see you in the second half of the year.
The applicant lodged a special consideration application with RMIT University on
16 March 2012 seeking a deferred assessment in respect of the practical which she failed to complete between 6 and 10 February 2012. In that application the applicant said that she attended the Monday at the practical but missed Tuesday as she needed to see a doctor. She said that after missing the techniques needed for the rest of the practical, she was advised to defer the remaining four days as it was not possible to catch up. She attached her doctor's certificate.
On 23 March 2012 the applicant was notified by RMIT University that her special consideration was cancelled apparently because applications for special consideration needed to be submitted within two business days of the assessment which is stated in the university's Special Consideration Policy.
The applicant responded to RMIT University by referring to an e-mail which she sent on 21 March 2012. The applicant seemed to be unaware that the response she provided on 21 March 2012 was in respect of her first application under the special circumstances provisions regarding the practical which she missed on 2 February 2012. That subject has the identifier BIOL2333 whereas the practical which she missed on 6 – 10 February 2012 was the BIOL2335 (also known as, SCB140 Introduction to Microbiology, Immunology & Genetics (the unit)). Nevertheless, the applicant said:
My pracs were in late Feb that this is about. I spoke to the Coordinator of the course and she told me that I would be able to defer if I provided a med cert. I gave this to special consideration around that time and they said they do not accept medical certificates.… I was not aware that there was a time constraint because I study by distance, I never have to go through this stuff, I never speak to anyone other than via e-mail. The coordinator did not tell me there was a deadline to do it or anything like that, so I had no idea.…
I have passed the unit in question with a confirmed HD grade, the only thing needed to finalise grade is prac attendance. I have done the exam and all assignments. The reason I assumed I had time is because it will be held in study period 3, it is now study period 1 and I had so much to do.…
The unit is Intro to microbiology immunology and genetics – undergrad Bachelor of Science (Applied Sciences) through open universities victoria. I am not even an Rmit student! I am in my final year and to be honest I have been emailing OUA about far more important things. Anyway, if I am to 'fail' or be denied education due to no fault of my work, I will need to withdraw through OUA and Rmit will be refunding me for my fee of $1500. I think it would be in your best interest to resolve this and allow me to defer to term 3 as the coordinator agreed. I need to attend for four days and then I pass with a HD regardless. Nowhere does it say I have five minutes to apply for special consideration for a course that is in September.…
On 19 April 2012 RMIT University sent an e-mail to the applicant asking her to provide a completed Impact Assessment Statement to support the reasons she had previously given for the late submission of her special circumstances application. That e-mail referred to chronic anaemia and memory issues.
The applicant responded by e-mail on 1 May 2012 stating:
The doctor has already filled one of these out for CHRONIC ILLNESS. How about the reason that I am not an internal student and unless faced with trial and error would not know these policies?…
I fail to see how this is my fault and as I mentioned unless I am able to finish my studies I will get a full refund of fees from Rmit which is $1500. You cannot fail me when it is not based on the quality of my work either. I have a HD for this unit as I have already done assignments and exam, just not 4 days attendance. You are questioning whether of [sic] not to deny a full fee paying EXTERNAL student education because she was sick and then forgot to apply and does not know the policy anyway.
RMIT University wrote to the applicant on 22 May 2012 referring to both of the applicant's applications for special consideration. It stated that permission for acceptance of a late special consideration application may be granted in accordance with its Special Consideration Policy where a student seeks a review of a cancelled outcome within five working days of notification of the cancellation; and can establish that there were exceptional circumstances which prevented submission of an application or supporting documentation by the due date.
In respect of the second application relating to BIOL2335 which was made on 16 March 2012, RMIT University referred to the medical certificate the applicant provided from
Dr Chai-Ling Ooi (to which I have referred above) and also an Impact Assessment Statement completed by Dr Leon Lewi on 30 September 2011. That impact statement referred to the applicant having painful scoliosis. That condition is described in Dorland's Medical Dictionary, 27th edition as: an appreciable lateral deviation in the normally straight vertical line the spine. In response to the question how the disability impacted on the student's academic assessment, Dr Lewi said: unable to sit for long period. While Dr Lewi also ticked the boxes indicating there was a severe impact on the academic assessment and also a moderate impact on the academic assessment, he appears to have ruled through the first statement regarding impact leaving only a moderate impact on academic assessment. RMIT University concluded that the student had not provided evidence of exceptional circumstances which prevented her from making timely applications and that her applications for special consideration remained cancelled.
The applicant lodged a second application for special consideration in respect of the course BIOL2335 on 2 June 2012 referring to a practical assessment for 22 October 2012. Obviously, this application seemed to have been lodged in advance. Attached to that application were the two medical certificates to which I have referred above, which quite clearly have no relationship at all to a practical assessment due to be conducted on 22 October 2012, and also an Impact Assessment Statement completed by Dr Chai-Ling Ooi apparently on 31 May 2012. That document refers to a consultation on 7 February 2012 and was plainly drafted retrospectively based on information given to the doctor by the applicant. In fact the doctor has ticked the box indicating: The Student states that he/she is suffering from: dysuria and urinary frequency (past history of known urinary retention). The doctor also ticked the box indicating it had a minor impact on the academic assessment on that day.
The applicant also provided an extract from the clinical notes of the East Keilor Clinic between 1 February 2012 and 9 February 2012. The first entry in those notes refers to the applicant complaining of dizziness for the last four days; she walked into a wall; nauseated; had some palpitations; and pressure feeling in her nose but no headache. An ECG report was requested and medical certificate given in respect of arrhythmia (misspelt as arrythmia). The applicant had another consultation with a different doctor from that clinic on 9 February 2012 and the report indicated she still felt palpitations but no cause had been found.
As I indicated at the outset of this section dealing with special circumstances claimed by the applicant, the applicant lodged her first special consideration application on
24 February 2012 in respect of course BIOL2333 which involved a practical on
2 February 2012. The applicant requested an alternative assessment on that application. That application was also made to RMIT University in respect of an assessment. In support of that application the applicant said: I have previously done all other pracs at Victoria University. I was wondering if I could be exempt so that I can get my score rather than attending one day mid year as I have already done it? The teacher I studied under is Dr [X] who teaches at both Melbourne University and Victoria University.
The applicant was asked to provide and Impact Assessment Statement completed by a medical practitioner.
In an e-mail dated 28 February 2012 the applicant responded by saying: Why do I need an impact statement? I have attached a medical certificate and wanted to be exempt on conditions that I have already done the pracs in previous education. The university responded by explaining why the Impact Assessment Statement was required and also queried whether the applicant was applying for "recognition of prior learning". If so, it advised that this was not a matter for special consideration. The applicant responded by saying:
We were told early in the term that we could be exempt from participating in pracs if we had done it before. I asked the lecture and he said no to me then I did 4 of 5 pracs and I had already done them, which he told me was not the case as I have not been employed. I saw for myself that he was wrong and it was a waste of my time. As I missed one day due to illness (attached medical cert) I will not get my grade and had to resit the one day I missed the mid year, he still will not exempt me even though I have given my teachers name. I do not want to do this, as I have already done all of these pracs. I would simply like you to ask the coordinator, [X] if I can be exempt from the one day I missed so that I can have my grade though she may need to contact [X] who I studied under at a different University as I explained.
It should be apparent that this explanation is not dissimilar to the explanation given in respect of BIOL2335 regarding having already completed practicals of this kind.
Furthermore, in her e-mail on 21 March 2012 the applicant responded by first stating that special consideration had been approved by the coordinator of this course. The subsequent evidence discloses it had not. She also explained that the reason for the late application was due to multiple practical classes followed by exams which caused her to completely forget about it because she had chronic anaemia and therefore memory problems.
Finally, I should refer to the applicant's special circumstances application made with OUA. This application was solely for the purpose of having the course fee for the unit (subject BIOL2335) re-credited to her FEE-HELP balance. On that application form she indicated that the grounds of application were: medical reasons; family/personal reasons; and course related reasons. In answer to the question how her condition/circumstance impacted on her ability to study, the applicant answered:
Impossible to attend, due to highly uncomfortable urinary condition. Could not treat infection within the prac date. Applied to defer but told not possible. Demanded fail grade to re-enrol. Ombudsman advised to seek refund via this method (RMIT OMBUDSMAN)
It is clear that the applicant obtained the Impact Assessment Statement which was made on 31 May 2012 for the purposes of her special circumstances application lodged with OUA on about 2 July 2012. While Dr Chai-ling Ooi refers to dysuria and urinary frequency, that was not based on his diagnosis but rather on what the applicant told him. He noted that the applicant had a past history of urinary retention but there was no evidence of that medical condition impacting on her ability to attend the practical. In fact that Doctor recorded that the condition was episodic and its impact fluctuating. He also noted it had minor impact on academic assessment.
I had no evidence before me about the other two grounds upon which the application was made. There was nothing at all about family/personal reasons and the only course related reasons appear to be the fact that she had done the practical exercises or similar exercises in the past. I did not have before me any evidence of comparable past practical work. In any event, that does not appear to be a circumstance contemplated under the special circumstances provisions.
Returning to the three grounds which must be satisfied in order to find that special circumstances existed in the context of an application to OUA for re-crediting of the FEE-HELP balance (s. 104-30 (3) of the HES Act), the only evidence before me which would support such circumstances existing related to the medical reasons. Assuming the best case as far as the applicant is concerned, in other words, that she suffered from dysuria and urinary frequency between 6 and 10 February 2012, I would find that such circumstances were beyond her control and did not make their full impact on her until after the census date for the unit of study in question. In other words, I would find that she satisfied s. 104-30 (3)(a) and (b). However, subsection (c) must also be satisfied before I can make a finding that special circumstances applied to the applicant. Therefore, the medical condition must have made it impracticable for her to complete the requirements for the unit in the period during which she undertook or was to undertake that unit. The problem for the applicant is that the Impact Assessment Statement completed by Dr Chai-ling Ooi states that if she had the urinary condition on 7 February 2012, that would only have had a minor impact and not a significant impact on her ability to undertake the practical.
The problem for the applicant in this case is that I did not have medical evidence regarding her inability to attend the practical sessions on the days in question. Although the applicant was able to produce the clinical notes from the East Keilor Clinic following her examination by Dr Lewi on 1 February 2012, she did not produce clinical notes from the Keilor Downs Medi-Clinic relating to the consultation on 7 February 2012. The Medical Certificate provided by Dr Chai-ling Ooi on that day does not indicate the degree of incapacity or, in fact, whether the medical certificate was based on her condition or her statement that she was unable to attend university and undertake assessments. The subsequent Impact Assessment Statement is unhelpful. It is based not on a diagnosis but rather a statement made by the applicant. In any event, the conclusion made by the doctor was that it did not have a significant impact on the applicant's ability to undertake the assessment. Given that I am required to make findings based on the evidence before me, I must find that the applicant has not established, by evidence, on the balance of probabilities, that it was impracticable for her to complete the requirements for the unit in the period during which she undertook that unit. It follows that I find the special circumstances provisions set out in s. 104-30 (3) do not apply to her.
CONCLUSION
Following an application lodged by the applicant with OUA for a re-crediting of her FEE-HELP balance, on 24 August 2012 OUA determined not to approve her application. Although OUA gave reasons which related to the basis upon which RMIT University refused to grant the applicant special consideration regarding her academic assessment, respectfully I do not agree with those reasons. However that is not relevant for the purposes of determining this application to the Tribunal for the reason that the review conducted by this Tribunal is by way of hearing de novo. I am not concerned with the reasons given by the original decision maker but rather, whether the decision was the correct or preferable decision on the material before me.
I have found that the only ground supporting the applicant's application to apply the special circumstances provisions in s. 104-30 (3) of the HES Act related to a claimed medical condition. However, having examined all of the documents provided to the Tribunal for the purposes of this hearing on the papers, I have come to the conclusion that the decision made by OUA on 24 August 2012 rejecting the applicant's application for re-crediting of her FEE-HELP balance was the correct decision. I affirm that decision.
I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of
Senior Member Egon Fice...[sgd].....................................................................
Associate
Dated 3 October 2013
Hearing on the papers 12 September 2013 Date of decision 3 October 2013 Representative for the Applicant Self-represented Advocate for the Respondent Mr S Maundrell Solicitors for the Respondent Department of Education, Legal Branch
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