Coyle and Secretary, Department of Education, Training and Youth Affairs

[2001] AATA 324

DECISION AND REASONS FOR DECISION [2001] AATA 324

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2000/649

GENERAL ADMINISTRATIVE DIVISION          )          

Re      KELLYANNE  COYLE      

Applicant

And    SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date23 March 2001

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No  N2000/649
  )  
GENERAL ADMINISTRATIVE DIVISION     )

Re:     KELLYANNE COYLE

Applicant

And:     SECRETARY, DEPARTMENT OF EDUCATION TRAINING AND YOUTH AFFAIRS

Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  23 March 2001

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT

the Higher Education Contribution Scheme debts owed by the Applicant to the Respondent be remitted.

(Sgd)  M.D. ALLEN

.............................

Senior Member
CATCHWORDS
EDUCATION  -  HECS debt remission.  Whether Applicant had withdrawn from University studies by census date.  Reasonableness of belief that all action necessary on her part had been performed.  Did special circumstances exist?

Higher Education Funding Act 1988 - s106L

Re Thomas v Department of Training and Youth Affairs [2000] AATA 784
Secretary, Department of Social Security v Ellis, 24 AAR 535

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  23 March 2001
Date of Decision  23 March 2001

Representative for Applicant     Applicant was self-represented
Solicitor for Respondent            Ms Jodie Maurer,
  Australian Government Solicitor's Office

DRAFT DECISION  

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N2000/649
By Mr M.D. Allen, Senior Member
KELLYANNE COYLE and DETYA
FRIDAY, 23 MARCH 2001

MR ALLEN:  In this matter the applicant, pursuant to an application lodged with the Tribunal on 23 June 2000, sought review of a decision not to remit payment of a higher education contribution scheme debt, arising out of studies at the University of Sydney for the first and second semesters of the year 1999.  The applicant's claim is that because of circumstances arising at her home as a result of her younger brother becoming delinquent and impossible to manage by her mother, at that time and all relevant times a widow.  She was required to return to her home in order to give some support to her mother.

The fact that her younger brother, to use a colloquialism, went off the rails, is supported by various documents in the section 37 documents provided to the tribunal together with exhibits A1 and A2 in these proceedings. I would also mention, as I consider it relevant, that the applicant at the time these events took place had only just turned 18. Her birthday being on 1 March 1981. I consider it, as I said, relevant that she was very young at the time. Her mother is a widow and a housewife, consequently it would seem she had very few people to whom she could turn for advice as to what to do in circumstances and I also note that she was straight out of high school.

It is clear that because of the family circumstances, she gave away her studies.  But unfortunately she did so after what is termed, the census date, the so-called census date as I understand it is that date prior to which a student may withdraw from a university course without incurring a liability for a HECS debt.  The census dates for semester 1 in the academic year 1999 was 31 March of that year and for semester 2, 31 August.  By failing to withdraw from her courses by 31 March and 31 August, she therefore incurred a debt.

The applicant today gave sworn evidence that she understood that she had withdrawn from her course when she attended at the student centre at the University of Sydney.  Her evidence was that she attended at that centre on 31 May 1999, spoke to somebody there who was, in her words, "fiddling with a computer", by which I take it to mean that he was performing some action on the computer and then he said to her, words to the effect that that was fine.

Now, her evidence in that regard was corroborated to an extent by the evidence of Ms Guirguis.  Ms Guirguis stated that she was

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standing next to the applicant at the student centre.  The applicant was talking to a person and then finally the applicant said to that person, "Is there anything else I have to do", to which he replied, "Besides notifying your department, that's it".  Now, the applicant said today she doesn't remember that last particular phrase.  But certainly that evidence indicates to me that there was something said to the applicant that led her to believe, quite genuinely, that by notifying the student centre some action would be taken regarding her withdrawal from the course.

It may be argued that she should have followed up the other words, namely, "Besides notifying your department".  However, nothing was said even in that phrase about notifying in writing and I can understand that the applicant, given her age at the time and the circumstances, which were going on at her home did not pay the attention, perhaps in retrospect she should have paid, to everything that was said.

I am satisfied on the evidence however, that at that time she believed she had effectively withdrawn from the course.  It then appears that she received a letter notifying her that she had incurred a HECS debt for semester 1.  That was during the holidays between the two semesters and her evidence was that she contacted various persons, the university.  It would appear that her attempts to find out just what was happening was to some extent frustrated as she was passed by telephone to various people.

Finally, however, she was told she had no case regarding her first semester debt and would be charged for it.  She also gave evidence she spoke to the undergraduate coordinator at the University of Sydney who said to her she could not do anything.  The applicant then received a letter in September, namely on or about 27 September notifying her that she had a HECS liability to semester 2.  I failed to point out earlier that the applicant's belief that she had withdrawn from the degree course is also corroborated by what is document T7, which is an extract from a print out maintained at Centrelink, Wollongong.

That document corroborates the applicant's evidence that the day after she withdrew from the course, she attended at Centrelink, informed them she was no longer a student, no longer eligible for AUSTUDY, the date is 3 June which as other evidence before me was that 31 May 1999 was a Friday, it would of course be the next working day.  The applicant gave evidence she thought because she had withdrawn from semester 1, it would withdraw her from semester 2.  Part of that belief is understandable in that there was one subject, Nursing 1A and in semester 2 there was the subject Nursing 1B.

One might assume, although nothing has been put before me, that 1A would be a pre-requisite to 1B but I don't know.  But I could understand a
person believing that when they didn't attend lectures or exams in the first

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semester, they would not automatically be re-enrolled in the second semester.  For its part, the respondent has pointed out that the applicant signed a form entitled, Payment Options Declaration form, a copy of which is exhibit R2 in these proceedings.  Part B of that form says:

I declare that:
I have read the HECS:  Your Questions Answered booklet ….

Then there follows the signature of the applicant.  The particular declaration further reads, in full:

I declare that:
I have read the HECS: Your questions Answered booklet and the instructions on who is required to complete this form and am aware of my obligations under the Scheme and the requirement for all withdrawals to be in writing (or other form as required by my institution).

An extract from the HECS, "Your questions answered", booklet is included in the documents prepared for the tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. At page 63 of these documents being document T33, there is an extract under the heading, "What happens if I withdraw or I don't complete my semester studies". The applicant admitted that she had not read that book and of course, is trite that before withdrawing she should have made herself well aware of the requirements in that booklet. Section 106L of the Higher Education Funding Act 1988 reads, inter alia:

1.The secretary may, in writing, remit the whole or part of a person's HEC semester debt if:

(a)the person has not completed the course requirements for his or her course of study in respect of a semester or during the year in which the semester occurred; and

(b)the Secretary is satisfied that special circumstances apply to the person (see subsection (3));  …"

Sub-section (3) of section 106L then reads:

For the purposes of this section, special circumstances in relation to a person include 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 or the study period (as the case requires); 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,

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or the units of study for which he or she was enrolled for the study period (as the case requires).

That particular section and subsection was discussed by Senior Member Kiosogolous in the matter of re Thomas v Department of Training and Youth Affairs [2000] AATA 784. At paragraph 20 of his reasons for decision, the learned Senior Member says:

The Tribunal notes the recent Federal Court case of Secretary, Department of Education, Training and Youth Affairs v Ellem [2000] FCA 695, in which the relationship between sub-sections 106L(1), (3) and (3A) of the Act was canvassed.  Lindgren J in the decision also discussed the applicability (or otherwise) of the relevant guidelines issued by the Secretary.  It is clear that in the broader context of section 106L of the Act, "special circumstances" is intended to encompass the sub-section 106L(3) factors, but not be limited by them.  This Tribunal is regularly indicating that all "special circumstances" cases must be weighed on their merits, and there is clearly no set formula to follow with regard to the existence (or not) of special circumstances.

The learned Senior Member then continued:

At paragraph 38 of Ellem, Lindgren J states:

"A person may choose not to complete a course on account of circumstances as multifarious as human experience allows. Examples are: sudden and unforeseeable family or economic exigencies; a change in professional qualification requirements; a change in the teaching staff of the institution of higher education; a developing appreciation by the person that the course is not well adapted to his or her needs or desires; a developing appreciation by the person that he or she is not well equipped to undertake the course.  In some circumstances the voluntary element will be so dominant that it could not reasonably be suggested that special circumstances apply to the person, as where the person simply decides, as a matter of "preference", not to complete the course.  In other cases, the pressure of external circumstances on the person may be almost irresistible, such as circumstances associated with a death or terminal illness in the person's family.  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

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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."

So far as the term special circumstances itself is concerned, I would refer also to what was said by his Honour Carr J in Secretary, Department of Social Security v Ellis, 24 Australian Administrative Reports 535 at 539.  His Honour said:

In Beadle v Director-General of Social Security (1985) 7 ALD 670, a Full Court of this Court had to consider whether the Administrative Appeals Tribunal had erred in its interpretation of s 102(1)(a) of the Act which provided for an extension of time in which to claim a family allowance "… in special circumstances …".  At 673-674 the Full Court said:

"Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate.  …  It would depend upon the circumstances of the particular case whether these constituted special circumstances.  We do not think it is possible to lay down precise limits or precise rules.  The matter is one for the Director-General bearing in mind the purpose for which the power is given.  The phrase 'special circumstances', although lacking precision, is sufficiently understood in our view not to require judicial gloss."

His Honour, Carr J, then continued referring to the case of:

… Groth and Secretary, Department of Social Security (1995) 40 ALD 541 at 545…

"… 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.  That was, I consider, the only inquiry to be undertaken in this 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.  The inquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied."

In this matter, it seems to me that so far as semester 1 is concerned obviously the applicant was disturbed by her brother's delinquency and the problems it was creating for her family.  She decided in the circumstances that her family duties required her to cease residing in Sydney and attending Sydney University and go back home to support

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her mother.  It certainly seems to me that they were properly recognised as special circumstances.  The difficulty arises in relation to semester 2.  I have stated earlier, I accept that the applicant did attend the student centre and indicate to somebody there that she was withdrawing from the course at Sydney University.

I also accept that some words were said to her which led her to honestly believe that that person had taken steps to effect her withdrawal from the course.  There still remained matters to be done by her but for whatever reason, that did not impinge itself on her consciousness at that time.  The respondent has pointed to exhibit R2, where it clearly said that the requirement for all withdrawals is to be in writing and has stressed that point.  However, to me that is not clear.  The form which is exhibit R2 says:

… the requirement for all withdrawals to be in writing (or other form as required by my institution).

The same wording occurs at page 63 of the section 37 documents being the extract from the HECS booklet that says in part:

If you complete your formal withdrawal from any unit with the university's central student administration …

Well, I understand the applicant did go to the Central Student Administration and it then says:

You should withdraw in writing or in the form required by your institution …

So it seems to me that by using the words, "or other form required", that is an indication that a withdrawal may take place otherwise than in writing, otherwise the wording is simply tautology.  All in all it seems that the applicant did what she understood she had to do to withdraw.  The circumstances were clearly special and in all of the circumstances, it seems to me that it would be unfair, unintended or unjust, in the circumstances to now turn around and hold that she is liable for HECS for the second semester.  I therefore intend to set aside the decision under review and substitute in lieu thereof the Tribunal's decision that the Higher Education Contribution Scheme debts owed by the applicant to the respondent be remitted.

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