Cruickshank and Secretary, Department of Education

[2023] AATA 2678

Cruickshank and Secretary, Department of Education [2023] AATA 2678 (22 August 2023)

Division:General Division 

File Number:2022/9327          

Re:Mr William Peter Cruickshank  

APPLICANT

AndSecretary, Department of Education

RESPONDENT

DECISION

Tribunal:Senior Member B. Pola

Date:22 August 2023

Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), I affirm the reviewable decision of the respondent dated 17 October 2022.

.............................[SGD]...........................................

Senior Member B. Pola

Catchwords

HIGHER EDUCATION SUPPORT – respondent refusal of removal of HECS-HELP debt – whether special circumstances exist – whether applicant circumstances beyond his control – whether the applicant’s circumstances made their full impact on or after the census date – medical evidence of applicant health conditions considered – Higher Education Support Act 2003 (Cth) applied – cumulative statutory test applied – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Higher Education Support Act 2003 (Cth)

Higher Education Support (Administration) Guidelines 2022

Cases

Crisp and Secretary, Department of Education and Training [2019] AATA 5295

Georgiou and Secretary, Department of Education and Training [2019] AATA 170

Montenegro v Secretary, Department of Education [2020] FCAFC 210

Peters and Secretary, Department of Education, Skills and Employment [2021] AATA 3800

Sadek and Secretary Department of Education [2017] AATA 1399

Tralongo and Secretary, Department of Education [2016] AATA 393

Ullah and Secretary, Department of Education and Training [2018] AATA 2159

REASONS FOR DECISION

Senior Member B. Pola

22 August 2023

BACKGROUND

1. The applicant, Mr William Peter Cruickshank, enrolled in the following two units of study as part of a Bachelor of Computer Science, Masters of Data Science which he was undertaking with the University of Queensland (herein referred to as “UQ”) for semester one of 2022 on 17 January 2022[1]:

   (a)CSSE2310 – Computer Systems Principles and Programming (enrolled on   17 January 2022); and

   (b)MATH1052 – Multivariate Calculus & Ordinary Differential Equations   (enrolled on 17 January 2022).

   [1] Exhibit TR1, section 37 T Documents, T4, page 38.

2. The applicant was enrolled in a further two subjects from semester one of 2022 which are not subject to this application which the applicant completed and passed, these subjects were[2]:  

   (a)COMP2048 – Theory of Computing (the applicant passed this subject with an overall grade of a “Credit”); and

   (b)CSSE2002 – Programming in the Large (the applicant passed this subject and achieved an overall grade of a “Pass”).

   [2] Exhibit A1; Exhibit TR1, section 37 T Documents, T6, page 49; and T21, pages 283 and 284.

3. The applicant received an email from UQ (authorised by the Academic Registrar) on             18 March 2022 explaining that the census date for withdrawal from his units of study (without incurring fees, i.e., HECS-HELP liability) was 31 March 2022, and that the date for withdrawal from his units of study without academic penalty was 30 April 2022[3]. The census date was further communicated in an academic calendar which was available to the applicant[4].

   [3] Exhibit TR1, section 37 T Documents, T10, pages 63 to 66; and T9, pages 61 to 65.

   [4]  Exhibit TR1, section 37 T Documents, T8, pages 54 and 55.

4. The applicant was subsequently emailed a statement from UQ on 11 April 2022, indicating he had incurred a total HECS-HELP debt of $3,504 for the two units of study[5].

   [5]  Exhibit TR1, section 37 T Documents, T6, pages 49 and 50.

5. On 1 July 2022 the applicant completed and lodged a form entitled “Removal of Course”, which sought a re-credit of his HECS-HELP fees incurred for the units of study he had enrolled in for semester one of 2022[6].

   [6]  Exhibit TR1, section 37 T Documents, T14, pages 78 to 85.

6. On 30 August 2022, UQ had written to the applicant to inform him of their decision to refuse his application of removal of his HECS-HELP debt for his units of study in semester one of 2022[7]. On 26 September 2022, the applicant requested a review of this decision[8].

   [7]  Exhibit TR1, section 37 T Documents, T17, pages 135 to 139.

   [8]  Exhibit TR1, section 37 T Documents, T18, page 140.

7. On 17 October 2022, UQ had written to the applicant to advise him that the reviewer confirmed the earlier decision to refuse his application of removal of his HECS-HELP debt for his units of study in semester one of 2022[9].

   [9]  Exhibit TR1, section 37 T Documents, T19, pages 248 to 251.

8. On 13 November 2022, the applicant applied to the Administrative Appeals Tribunal (herein referred to as the “Tribunal”) for review of that decision[10].

   [10] Exhibit TR1, section 37 T Documents, T1, pages 1 to 18.

   JURISDICTION

9. Decisions by higher education providers regarding a refusal to re-credit a person’s HECS-HELP debt, pursuant to section 97-25(2) of the Higher Education Support Act 2003 (Cth) (herein referred to as the “Act”) are reviewable decisions, pursuant to section 206-1 (Item 1B) of the Act.

10. Applications can be made to the Tribunal under section 212-1 of the Act, for reconsideration of a, “reviewable decision” that has been confirmed, varied, or set aside, pursuant to section 209-5 or section 209-10 of the Act.

11. The original decision was made on 30 August 2022. A request for an initial review of this decision by the respondent was made by the applicant, and on 17 October 2022, the original decision was confirmed. It therefore follows that the Tribunal has jurisdiction to review this application pursuant to section 212-1 of the Act.

    ISSUE

12. The issue before the Tribunal for consideration is whether section 97-25(2) of the Act applies to the applicant. That is, whether UQ on behalf of the Secretary for the Department of Education must re-credit the applicant’s HECS-HELP balance with an amount equal to the amount of HECS-HELP assistance that he received for the two units of study he enrolled in during semester one of 2022.

13. This in turn requires the Tribunal to consider whether, “special circumstances” apply to the applicant, in accordance with section 97-30 of the Act, whilst also having regard to the Higher Education Support (Administration) Guidelines 2022 (herein referred to as the “Administration Guidelines”).

    LEGISLATIVE FRAMEWORK

14. Part 3-2 of the Act outlines provisions with respect to how HECS-HELP assistance is made available to eligible students. Section 87-1 of the Act provides that a student may be entitled to HECS-HELP assistance for units of study for which he or she is Commonwealth supported, if certain requirements are met. The amount of assistance to which the student may be entitled is based on his or her student contribution amounts for the units, less any up-front payments. The assistance is paid to a higher education provider to discharge the student’s liability to pay his or her student contribution amounts.

15. Section 90-1(e) of the Act provides that in circumstances where a student is enrolled in a unit of study on or before the census date, and that student remained enrolled in that unit of study at the end of the census date, then HECS-HELP assistance is made available to that student (in addition to other provisions).

16. Section 96-1 of the Act sets out the requirements of the Commonwealth in circumstances where a student who is entitled to an amount of HECS-HELP assistance for a unit of study. The Commonwealth must lend that amount to the student, and the Commonwealth must pay the provider the amount lent in discharge of the student’s liability to pay the student contribution or the amount of the unit of study.

17. Section 137-5 of the Act sets out provisions for determining when an individual incurs a HECS‑HELP debt. Importantly, section 137-5(3) states that an individual incurs a HECS-HELP debt, “immediately after the census date for the unit [enrolled in]…”.

18. Section 137-5(4) of the Act provides that a person’s HECS-HELP debt in relation to a unit of study is taken to be remitted if section 36-20, 36-24A, 36-24B, 36-24BB or 36-24BC of the Act applies to the person (even if subsection 36-20(3), 36-24BB(3) or 36-24BC(3) of the Act applies to the provider in relation to the person).

19. Section 137-5(5) provides that a person’s HECS-HELP debt in relation to a unit of study is taken to be remitted if the person’s HELP balance is re-credited under Division 97 of the Act. Relevantly, section 97-25(2)(c) provides for the recrediting of a HELP balance with an amount equal to the amounts of HECS-HELP assistance a person has received in respect of a unit of study if they are satisfied that special circumstances apply to the person as stipulated in section 97-30 of the Act.

20. Section 97-30 of the Act provides:

    97-30 Special circumstances

    (1) For the purposes of paragraph 97-25(2)(c), special circumstances apply to the person if, and only if, the higher education provider receiving the application 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.

    (2)If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a 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 any such guidelines.

    Note: The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.

21. It is important to note that all criteria stipulated in section 97-30(1)(a), (b) and (c) of the Act regarding special circumstances must be met for this test to be satisfied.

22. The Administration Guidelines referred to in section 97-30(2) of the Act, are a legislative instrument made pursuant to section 238-10 of the Act and have application in the present matter.

23. With respect to the application of the Administration Guidelines, it is important to note the decision of the Full Court of the Federal Court of Australia in Montenegro v Secretary, Department of Education [2020] FCAFC 210, with respect to the adoption of Administration Guidelines, where His Honour Justice Flick stated[11]:

    “…Where a provision thus requires that something is to be done “in accordance with” the Administration Guidelines, what is required is that those Guidelines themselves become a “substitute regime” which is to be complied with…”

    [11] [25].

24. His Honour Justice Charlesworth similarly stated in his reasons that the Guidelines form part of the statutory scheme for consideration by decision makers[12]:

    “…For my part I do not consider the Guidelines to be “relevant considerations” in the sense advanced by counsel for the appellant in the course of submissions. Rather, they form a part of the statutory scheme that conferred, defined and conditioned the decision-maker’s powers…”

    [12] [64].

25. In view of the above, it is important to have regard to the Administration Guidelines, and the relevant provisions are transposed:

    Part 3 –Special circumstances

    12 Circumstances beyond a person’s control

    (1) For the purposes of paragraphs 36-13(3)(a) and 36-21(1)(a) of the Act, a higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which the provider reasonably considers is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.

    (2) The situation referred to in subsection (1) must be unusual, uncommon or abnormal.

    Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.

    13 Circumstances that did not make their full impact until on or after the census date

    (1) For the purposes of paragraphs 36-13(3)(b) and 36-21(1)(b) of the Act, a higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:

    (a)       before the census date, but worsen after that day;

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

    (c)       on or after the census date.

    Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.

    14 Circumstances that make it impracticable for the person to complete the requirements

    (1) For the purposes of paragraphs 36-13(3)(c) and 36-21(1)(c) of the Act, a higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study if the person undertook, or was to undertake, the unit in the following kinds of circumstances:

    (a) medical circumstances—for example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying;

    (b) family or personal circumstances—for example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies;

    (c) employment related circumstances—for example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or

    (d) course related circumstances—for example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.

    (2) The requirements for a unit of study referred to in subsection (1) are that the person:

    (a) undertakes the necessary private study required, or attends sufficient lectures or tutorials or meets other compulsory attendance requirements in order to meet their compulsory course requirements;

    (b)       completes the required assessable work;

    (c)       sits the required examinations; or

    (d)       completes any other course requirements.

    Note:   Circumstances specified in this provision also apply

    CONSIDERATION

26. This application was heard in Brisbane on 2 August 2023, with the applicant (who was self-represented) appearing in person, supported by his father, Mr Mark Cruickshank (who did not participate in the hearing but was there to support the applicant). The Respondent was represented by Mr Myles Norris of the Department of Education (herein referred to as the “Department”), and Maple Ko and Louis Saunders of the Department were also present, but were not participants in the hearing and were present in an observing capacity. The Tribunal heard oral submissions from the applicant, and the respondent’s representative. Additionally, the Tribunal considered submitted evidence outlined in the Exhibit Register, in Annexure 1 of these reasons.

27. As stated in earlier reasons, the issue for consideration is whether section 97-25(2)(c) of the Act applies to the applicant. The respondent does not contest the remaining provisions of section 97-25(2) of the Act, and accepts the remaining provisions are satisfied by the applicant[13].

    [13] Exhibit R1, page 12, paragraph 33.

    Applicant’s claimed circumstances

28. The applicant’s submissions refer to one category of circumstance which he claims impacted upon his ability to withdraw from his units of study prior to the census date, and this relates to his medical circumstances. In the following paragraphs I highlight some of the relevant evidence with respect to the applicant’s claimed medical circumstances prior to and during the relevant study period of semester one of 2022:

    (a)A referral letter dated 20 December 2021 from Dr Caulley the applicant’s General Practitioner (herein referred to as “GP”) to Dr Kiel of Gastroenterology Clinics Queensland, which noted “chronic abdominal pain of unknown cause”, which also referred to the applicant suffering from it for the past 12 months[14].  

    [14] Exhibit TR2, supplementary section 37 T Documents, ST6, pages 530 to 535.

    (b)A letter dated 1 February 2022 from Dr Cornwell of Gastroenterology Clinics Queensland to Dr Caulley summarising a consultation with the applicant; I note the following comments[15]:

    [15] Exhibit TR2, supplementary section 37 T Documents, ST7, pages 536 and 537.

    “… William has just finished his first year at University in Computer Science, and also works as a Chess teacher. He does admit to having noticed that stress, particularly around the time of exams, made his symptoms worse. They did not however improve much over the holidays. He sleeps reasonably well, but often stays up late playing video games..”

    (c)A referral letter dated 28 March 2022 from Dr Caulley to Dr Broadhurst (Specialist), regarding his opinion on possible Retrograde Cricopharyngeus Dysfunction (here in referred to as “RCG”)[16].

    [16] Exhibit TR2, supplementary section 37 T Documents, ST9, pages 539 to 545.

    (d)A letter dated 25 May 2022 from Dr Broadhurst to Dr Caulley summarising a consultation with the applicant[17]:

    [17] Exhibit TR2, supplementary section 37 T Documents, ST12, page 576.

    “… Many thanks for the kind referral of William, 19, who attended today. He had a history of chronic nausea and weight loss. He finds it quite an effort for eating and keeping his weight stable. I see that his blood work-up was normal. He has seen a gastroenterologist as well who felt the symptoms were stress-related. There was some reflux oesophagitis on that endoscopy.
    Going through his referral letter, I had arranged a modified barium swallow to be performed first. This added some further information about William’s inability to burp. He has been online and read through a number of posts relating to this condition and feels that summarises his symptoms well. The condition is retrograde cricopharyngeal dysfunction.
    Like many patients, the discomfort with eating tends to settle if he lies flat on his back.
    The study showed increased oesophageal transit time with the bolus being retained in the mid-and lower oesophagus. It was incompletely cleared with additional swallows but did clear with the liquid flush.
    On further history, he certainly gives all the symptoms typical for this condition and they have been present for about two years.
    Examination showed a healthy young male. Examination of the neck and oral cavity were unremarkable. Videostroboscopy showed normal vocal fold mobility, closure and pliability. The piriform sinus in each side was clear.
    In a setting like this, I think it is certainly worth a trial of microlaryngoscopy, balloon dilation to the crocopharyngeus and an injection of 50 units of Botox into the posterior cricopharyngeal muscle. We went through the procedure and the expected outcomes and post-op recovery period today. Informed discussion was undertaken.
    Based on this, he would like to proceed and I will find dates that suit. I would expect him to gain good improvement from this procedure…”

    (e)Records dated 6 June 2022 of the applicant’s operation and correspondence from the hospital where the operation was performed[18].

    [18] Exhibit TR2, supplementary section 37 T Documents, ST13 and ST14, pages 577 and 578.

    (f)A letter dated 23 June 2022 from Dr Broadhurst to Dr Caulley summarising a consultation with the applicant, which states[19]:

    [19] Exhibit TR2, supplementary section 37 T Documents, ST15, page 579.

    “… It was a pleasure to see William back today. He underwent microlaryngoscopy with dilation of the cricopharyngeus and injection of 50 units of Botox 2 ½ weeks ago. He had some swallowing difficulties early on which unfortunately is fairly common for these patients but resolves. Overall things have resolved dramatically which is very encouraging for him.

    Examination showed clear voice and no difficulty with swallowing. Videosroboscopy showed normal vocal fold mobility, closure and pliability with no pooling of saliva in the piriform sinuses.

    At this stage, all looks satisfactory and I am very happy with the progress…”

    (g)A copy of the applicant’s patient health summary from his GP clinic, including a record of consultations undertaken between 26 November 2021 and   16 February 2023. Relevant to this application are the contemporaneous medical records of the Applicant’s treating general practitioners, and I note the entry by Dr McIntosh on 1 July 2022 regarding a consultation where Dr McIntosh recorded the following patient notes[20]:

    [20] Exhibit TR2, supplementary section 37 T Documents, ST5, pages 518 to 529.

    “…had surgery 6/6/22 for retrograde cricopharyngeal dysfunction. has wt [weight] gain 5kg in 3wk
    has failed some uni subjects as sx got much worse in april/may wt los, abdo pain, nausea, fatigue
    was unable to attend uni/very fatigued and unwell
    one week after surgery started to feel much better...”
    [sic]

    (h)A medical certificate dated 1 July 2022 from Dr Vicki McIntosh (the applicant’s GP), stating[21]:

    [21] Exhibit TR1, section 37 T Documents, T14, page 90.

    “… William was suffering from a medical condition – retrograde cricopharyngeal dysfunction which affected his ability to swallow/eat and caused substantial weight loss, nausea, abdominal pain and fatigue. The conditioned worsened significantly in the 6 weeks leading up to him having surgery for his condition on 6^th June 2022. This decline in his health was not foreseeable prior to census date.” [sic]

    (i)A letter dated 27 September 2022 from Dr Broadhurst stating[22]:

    [22] Exhibit TR1, section 37 T Documents, T18, page 144.

    “… Following a referral from Dr Sharnti Caulley, I had an initial consultation with William Cruickshank on the 25/05/2022 for possible retrograde cricopharyngeal dysfunction. He presented with increasing symptoms of nausea, stomach and chest pain, bloating, weight loss and difficulty eating, resulting in an inability to exercise and a level of fatigue which made him unable to regularly attend university or study effectively. These symptoms increased over the month of May, prior to his initial consultation.

    William had a modified barium swallow on the 16/05/2022, and then at his initial consultation a videostroboscopy was performed, and a diagnosis of retrograde cricopharyngeal dysfunction was given.

    A treatment plan including surgery and ongoing speech pathology was formulated at this consultation and surgery was booked for the 6/6/2022. At the consultatoin [sic] William was informed that post-operatively he may experience a worsening of his symptoms in the initial post-operative period including difficulty swallowing, reflux and possible aspiration, followed by a gradual improvement in abdominal and chest pain, improvement in swallowing and eating over several weeks, and secondary weight gain. A reduction in his fatigue could take several months.

    William underwent surgery (Suspension Microlaryngoscopy + Botox + Dilation Cricopharyngeal Muscle) at St Andrew’s Hospital on the 6/6/2022.

    At his post-operative consultation another videostroboscopy was performed.

    .

    He also underwent a repeat modified barium swallow on the 14/07/2022.

    William reported that he had experienced difficulty swallowing, reflux, an inability to exercise and ongoing fatigue post-operatively for 7 weeks which resulted in him being unable to regularly attend university or study effectively until the 22/7/2022…”

    (j)A letter dated 14 November 2022 from Dr Caulley in respect of the applicant’s medical condition, which states[23]:

    “… Please be advised that Mast WILLIAM CRUICKSHANK, age 19 yrs is my patient and has been diagnosed with retrograde cricopharyngeal dysfunction in May of 2022. I initially saw him regarding abdominal pain and nausea in November of 2021. His symptoms deteriorated in early 2022. I referred him to Dr Matthew Broadhurst who made the diagnosis of retrograde cricopharyngeal dysfunction. He later went on to have surgery on 6th June 2022.

    William's retrograde cricopharyngeal dysfunction had a signficant impact on his health during the first semester of 2022. He experienced chronic nausea and abdominal pain. He also had difficulty swallowing and reflux. This affected his ability to eat and drink normally. As a result he tells me that he experienced weight loss and fatigue which affected his ability to study. Unfortunately he had an initial deterioration in symptoms after his surgery and it took several weeks for these to improve. He tells me he started to improve near the end of July…” [sic]

    [23] Exhibit TR2, supplementary section 37 T Documents, ST17, page 584.

    Applicant’s engagement with his enrolled coursework

1. As stated in earlier reasons of this decision the applicant enrolled in four subjects for semester one of 2022 as part of his Bachelor of Computer Science, Masters of Data Science which he was undertaking with UQ, and is only applying for the removal of his HECS-HELP debt for two of the four subjects.

2. With respect to the two units of study in semester one of 2022 which the applicant is applying for removal of his HECS-HELP debt, the applicant’s participation can be summarised as follows:

   (a)CSSE2310 – Computer Systems Principles and Programming: The applicant submitted an assignment which was due on 1 April 2022 with a weighting of 15%, with the applicant achieving a result of 2% for this assessment. A second assignment was due on 14 April 2022 with a weighting of 15%, with the applicant achieving a result of 15% for this assessment. A third assignment was due on 13 May 2022 with a weighting of 15%, with the applicant achieving a result of 2% for this assessment. A fourth assignment was due on 3 June 2022 with a weighting of 15%, with records showing the applicant did not submit this assessment and therefore received a nil. It is noted that students were required to achieve at least 40% across their four assignments in the relevant semester to pass the unit of study, with the applicant achieving a result of 19%. It is noted that the applicant sat the final exam for this unit of study in the examination period, which had a 40% weighting and the applicant achieved a result of 13%. The applicant did not pass this unit of study[24].

   (b)MATH1052 – Multivariate Calculus & Ordinary Differential Equations: The applicant was required to undertake various “Matlab” exercises throughout the relevant semester with a weighting of 9%, with the applicant achieving a result of 4%. The applicant was required to complete the first assignment by 25 March 2022 with a weighting of 7%, with the applicant achieving a result of 4%. The mid semester exam had a weighting of 20%, with the applicant achieving a result of 6%. The applicant was required to complete a second assignment due on 13 May 2022 with a weighting of 7%, with the applicant achieving a result of 0%. The applicant was required to submit a third assignment with a weighting of 7%, with the applicant achieving a result of 1%. The applicant’s final exam for the relevant unit of study was held in the examination period, which had a weighting of 50% and the applicant achieved a result of 25%. Although the applicant passed the final exam for this unit of study, he did not achieve the required grades for his assessment throughout the semester, and therefore did not pass this unit of study[25].

   [24] Exhibit TR2, supplementary section 37 T Documents, ST20, page 587.

   [25] Exhibit TR1, section 37 T Documents, T15, pages 99 and 100; and Exhibit TR2, supplementary section 37 T 

3. With respect to the applicant’s engagement in the remaining units of study in the relevant semester, his participation can be summarised as follows:

   (a)COMP2048 – Theory of Computing (the applicant passed this subject with an overall grade of a “Credit”): The applicant undertook a “Codebreaking Laboratory” assessment which was due on 25 March 2022 with a weighting of 15%, with the applicant achieving a result of 15%. The applicant was required to complete an assessment with respect to “Demonstration Turing Completeness” on 14 April 2022 with a weighting of 15%, with the applicant achieving a result of 14.25%. The applicant was required to participate in an online mid semester quiz, with a weighting of 10%, with the applicant achieving a result of 10%. The applicant was required to complete a project that was due between 23 May 2022 and 3 June 2022 with a weighting of 30%, with the applicant achieving a result of 30%. The final exam for this unit of study was held in the examination period, and had a weighting of 30%, which the applicant achieved a result of 12% (noting that the applicant was required to obtain a result of 40% to pass the assessment) [26].

   (b)CSSE2002 – Programming in the Large: The applicant undertook online problems which were due on various dates throughout the semester and was worth a total weighting of 10%, of which the applicant achieved a result of 4.9% (it is worth noting that a failure to pass this assessment item did not result in failing the overall unit of study). The applicant submitted a programming assignment which was due on                 14 April 2022 with a weighting of 20%, with the applicant achieving a result of 9.9% (again I note, that a failure to pass this assessment item did not result in failing the overall unit of study). The applicant submitted a second programming assignment which was due on 20 May 2022 with a weighting of 20%, with the applicant achieving a result of 13.5%. The final exam for this subject had a weighting of 50% and was held during the examination period for semester one of 2022, with participants required to pass this assessment in order to pass the unit of study. The applicant achieved a result of 47.3%, or 19 marks out of 50[27]. Despite these assessment results the applicant still passed this subject with reference to his official academic transcript[28].

   [26] Exhibit TR1, section 37 T Documents, T15, page 106.

   [27] Exhibit TR2, supplementary section 37 T Documents, ST19, page 586.

   [28] Exhibit TR1, section 37 T Documents, T21, pages 283 and 284.

   Do special circumstances apply?

4. The issue for consideration is whether special circumstances apply to the applicant. That is, whether the applicant has demonstrated to the Tribunal pursuant to section 97-30(1)(a), (b) and (c) of the Act, that for the units of study in question, his circumstances:

   (a)were beyond his control; and

   (b)did not make their full impact on him until on or after the census date; and

   (c)made it impracticable for him to complete the requirements for the units of study in the period during which he undertook or was to undertake the units.

   Were circumstances beyond the Applicant’s control?

5. Part 3 section 12 of the Administration Guidelines (transposed in earlier reasons of this decision) state that circumstances are considered beyond the applicant’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 (observing that the situation must be unusual, uncommon or abnormal).

6. On reflection of the evidence before me I accept the supporting documented medical evidence regarding the diagnosis of the applicant’s RCD medical condition, made by  Dr Broadhurst contained in correspondence dated 25 May 2022 (after the census date of 31 March 2022).

7. I am of the view that the applicant’s medical condition of RCD was beyond his control in the sense that it was not due to his action or inaction, either direct or indirect and for which he is not responsible.

8. I refer to the applicant’s documented history with respect to the symptoms he had previously experienced in the period leading up to the diagnosis of his medical condition. The applicant’s symptoms of RCD date back to November 2020. There are patient notes of            Dr Caulley confirming the applicant had suffered symptoms of abdominal pain, nausea, bloating, fatigue, reflux and difficulties gaining weight from November 2021[29].

   [29] Exhibit TR2, supplementary section 37 T Documents, ST6, pages 530 to 535; and ST5, page 519.

9. During cross examination, the applicant confirmed he had experienced fluctuations in these symptoms in the past, and that sometimes these symptoms would improve, noting he had previously experienced a worsening in the condition in 2021, which had occurred during a period in the lead up to exams, that was documented by a Gastroenterologist, Dr Cornwell on 1 February 2022[30].

   [30] Transcript 2 August 2023, page 19, lines 12 to 21 and page 20, lines 4 to 22 and Exhibit TR2,    

10. I refer to the approach taken in previous decisions of the Tribunal with respect to findings which relate to applicants who suffer a history of fluctuations in their pre-existing medical condition(s), for the purposes of satisfying Part 3, section 12 of the Administrative Guidelines[31]. The common approach in these applications have been that where an applicant’s medical condition(s) existed prior to the census date, it was found that it was within the control of the applicant to withdraw from their enrolled units of study. This was particularly the case where evidence existed of prior fluctuations in pre-existing medical condition(s) before the census date, and as such these were not considered “unusual, uncommon or abnormal”.

    [31] Refer to Sadek and Secretary Department of Education [2017] AATA 1399, [28] and [29]; Tralongo and

    Secretary, Department of Education [2016] AATA 393 [24]; and Peters and Secretary, Department of  

    Education, Skills and Employment [2021] AATA 2250, [58]-[61].

11. In closing submissions to the Tribunal, the applicant sought to distinguish the factual circumstances of his application to the approach taken in applications I have referred to above, due to an absence of a diagnosis for his medical condition prior to the census date[32].

    [32] Transcript 2 August 2023, page 39, lines 32 to 41.

12. I am of the view that the absence of a diagnosis for the applicant’s medical condition in this application is not determinative in considering whether the applicant's pre-existing undiagnosed medical condition satisfies Part 3, section 12 of the Administrative Guidelines. In coming to this view, I refer to the evidence before me:

    (a)the applicant suffered from this medical condition for a considerable period of time with contemporaneous medical notes from the applicant’s treating GP Dr Caulley confirming the applicant had symptoms dating as far back as November 2020[33];

    (b)the applicant had suffered fluctuations in his condition in the past, with an episode recorded in the second semester of 2021, with Dr Cornwell noting in his letter of          1 February 2022 that the applicant admitted that, “…stress, particularly around the time of exams, made his symptoms worse…”[34];

    (c)the applicant had been seeking regular medical treatment to manage his symptoms, as noted in contemporaneous patient notes of his GP, Dr Caulley, on  26 November 2021, noting the applicant had been prescribed medication; and

    (d)the applicant underwent numerous testing by different specialists in the lead up to the census period, and would have been aware of the possibility he would require further medical treatment in order to manage his medical condition.

    [33] Exhibit TR2, supplementary section 37 T Documents, ST5, page 519.

    [34] Exhibit TR2, supplementary section 37 T Documents, ST7, pages 536 and 537.

13. For the reasons outlined above I am of the view the applicant’s medical condition is not considered “unusual, uncommon or abnormal” for the purposes of satisfying Part 3, section 12(2) of the Administrative Guidelines, given the evidence which documents his history and past fluctuations in his medical condition.

14. I note the applicant’s involvement in his coursework for his units of study during semester one of 2022, despite a worsening in his medical condition as confirmed by Dr McIntosh in the form of a letter dated 1 July 2022. Dr McIntosh stated the applicant’s medical condition had worsened significantly in the six weeks leading up to the applicant undergoing surgery for his RCG condition on 6 June 2022 [35].

    [35] Exhibit TR1, section 37 T Documents, T14, page 90.

15. From late April 2022, the applicant was still actively involved in his coursework as detailed in earlier reasons. I note that the applicant was still able to engage in the following course requirements despite a worsening in his medical condition from late April 2022:

    (a)CSSE2310 – Computer Systems Principles and Programming: the applicant completed an assignment due on 13 May 2022 and participated in the final exam for this subject. The applicant failed to submit an assignment which was due on  3 June 2022[36].

    (b)MATH1052 – Multivariate Calculus & Ordinary Differential Equations: the applicant completed an assignment due on 27 May 2022 and participated in a final exam for this subject. The applicant failed to submit an assignment which was due on                   13 May 2022[37].

    (c)COMP2048 – Theory of Computing: the applicant completed an online quiz due between 26 and 29 April 2022, a project due between 23 May 2022 and   3 June 2022, in addition to participating in the final exam for this subject[38].

    (d)CSSE2002 – Programming in the Large: the applicant completed an assignment due on 20 May 2022 and participated in the final exam for this subject[39].

    [36] Exhibit TR2, supplementary section 37 T Documents, ST20, page 587.

    [37] Exhibit TR2, supplementary section 37 T Documents, ST18, page 585.

    [38] Exhibit TR2, supplementary section 37 T Documents, ST21, page 588.

    [39] Exhibit TR2, supplementary section 37 T Documents, ST19, page 586.

16. I refer to the letter of Dr Broadhurst dated 25 May 2022, where it was documented by Dr Broadhurst that the applicant was informed of the post operative recovery period following surgery which was scheduled on 6 June 2022[40]. The applicant chose to continue with his university coursework, in full knowledge of the post operative recovery period and the timing of his surgery which was held a week prior to his final examinations[41].

    [40] Exhibit TR2, ST12, page 576.

    [41] Exhibit TR2, ST22, page 589.

17. The applicant did not take action to defer his coursework assessment. During the course of the hearing the applicant was taken to the policy of UQ with respect to deferring examinations and remedies available to students. The applicant acknowledged during cross-examination that despite his claimed understanding of what was available to him with respect to deferring his final examinations, he agreed that had he applied for alternative assessment under the relevant policy of UQ, it was likely that the university would have approved appropriate arrangements for him to defer his final examinations beyond the deferred examination period[42].

    [42] Transcript, 3 August 2023, page 27, lines 36 to 46 and page 28, lines 8 to 41.

18. I refer to the decision of Crisp and Secretary, Department of Education and Training[43], where Deputy President Britten-Jones considered the applicant’s actions and whether circumstances were beyond the control of the applicant, in a matter where the applicant was seeking remittal of their VET FEE-HELP loan, the Deputy President stated:

    “… If Crisp could have exerted some influence so as to reduce the impact of those circumstances then they may not be considered beyond the control of Crisp. The VET Information provides that circumstances could be considered beyond a person’s control if a situation occurs that a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible. This operates as a restriction on the circumstances that otherwise might have been relied upon. The clear intention is to deny applicants a remedy if they could have acted to avoid the consequences of the circumstances affecting them…”

    [43] [2019] AATA 5295 at [19].

19. I am of the view that the applicant did have remedies available to him to seek deferment of assessments and examinations and avoid the situation he chose to put himself in whereby he underwent surgery a week prior to sitting his final examinations. The applicant chose to attempt his final exams whilst recovering from surgery. For these reasons, I find the applicant’s medical circumstances were not beyond the control of the applicant.

20. I have found that the applicant did not satisfy section 97-30(1)(a) of the Act. In earlier reasons I noted that all provisions in section 97-30(1)(a), (b) and (c) of the Act must be satisfied in order to meet the test for special circumstances. Although I have found the applicant did not meet the first limb of this cumulative test, for completeness I will review the remaining limbs of this test.

    Did circumstances make their full impact on or after the census date?

21. With respect to the application of Part 3 section 13 of the Administration Guidelines, that is whether the applicant’s circumstances made their full impact on or after the census date, the Administrative Guidelines state that a higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:

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

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

    (c)on or after the census date.

22. With respect to section 97-30(1)(b) of the Act, and whether the applicant’s circumstances made their full impact on him until on or after the census date, I note the respondent has helpfully conceded this point and refer to the respondent’s submission[44]:

    “… The Secretary accepts that the available medical evidence surrounding the worsening of the Applicant’s condition around late April 2022 indicates that his claimed circumstances made their full impact on him after the census date for the Units.”

    [44] Exhibit R1, page 12, paragraph 34(b); and pages 20 and 21, paragraphs 70 and 71.

23. As detailed in earlier reasons, I accept the evidence provided from the applicant’s treating GP, Dr McIntosh in the form of a letter dated 1 July 2022 stating the applicant’s medical condition had worsened significantly in the six weeks leading up to the applicant undergoing surgery for his RCG condition on 6 June 2022, further stating that the applicant’s decline in health was not foreseeable prior to the census date[45].

    [45] Exhibit TR1, section 37 T Documents, T14, page 90.

24. This documented evidence is consistent with the applicant’s evidence to the Tribunal during cross-examination with respect to his fluctuating symptoms. The applicant maintained that he had not experienced the severity in his symptoms in the past, to that which he had experienced in the period from approximately late April 2022[46].

    [46] Transcript 2 August 2023, page 19, lines 20 to 21.  

25. In view of the above reasons, I find the applicant did satisfy section 97-30(1)(b) of the Act, that is, the applicant’s medical condition made its full impact on him after the census date, with respect to Part 3, section 13(1)(c) of the Administration Guidelines.

26. Although I have found the applicant did satisfy the second limb of the special circumstances legislative test set out in section 97-30(1) of the Act, I have previously found the applicant did not satisfy the first limb of the cumulative test set out in this section of the Act. For completeness, I will review the final limb of this test.

    Did circumstances make it impracticable for the Applicant to complete requirements of the units of study in question?

27. With respect to the application of Part 3 section 14 of the Administration Guidelines, it provides that a higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake the unit, if circumstances such as the following have occurred (relevant to the present application):

    (a)“medical circumstances” can be established (for example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying).

28. With respect to whether circumstances made it ‘impracticable’ to complete study requirements, I refer to Ullah and Secretary, Department of Education and Training[47], where Member Hyman stated:

    “… In my view none of the matters canvassed made it impracticable for Mr Ullah to continue his studies. Mr Ullah’s problems with his studies certainly made it more difficult for him to succeed, but they did not make it impracticable to continue, and he acknowledged during the hearing that although internet access in his village was limited, it was not so limited as to make it impossible for him to continue his studies. His loss of employment when he left Pakistan no doubt reduced his income but did not prevent him from studying. His wife’s health, as noted above, did not, on the evidence available to me, change significantly after the census date and so there is no evidence that it had an impact on his ability to study...”

    [47] [2018] AATA 2159 at [36].

1. I also refer to Senior Member A Poljak in Georgiou and Secretary, Department of Education and Training, where they stated the following with respect to “impracticable”[48]:

   “… I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. However, while the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of the Units, it is insufficient to establish that the circumstances were such that it was impractical for this to be done. I note that in the letter of Ms Malone she speaks of the applicant’s cognitive difficulties and its impact on her decision-making capabilities; I give this evidence little weight as it is not contemporaneous to when the applicant allegedly withdrew from the Units, or the census date in 2013…”

   [48] [2019] AATA 170 at [20].

2. With respect to the applicant’s medical circumstances, the Administration Guidelines further provide that a person is unable to complete the requirements for units of study if the person is unable to[49]:

   (a)undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or

   (b)complete the required assessable work; or

   (c)sit the required examinations; or

   (d)complete any other course requirements.  

   [49] Part 3, section 14(2) of the Administration Guidelines.

3. I have observed that the applicant was able to undertake a range of activities whilst experiencing increased severity in his symptoms in the period from approximately late April 2022 (some of which I have detailed in earlier reasons). These activities included:

   (a)Completing assessment for his university coursework;

   (b)Maintaining some employment through this period as a chess teacher[50];

   (c)Attending all of his final examinations for his enrolled units of study in semester one of 2022; and

   (d)Passing the final exam for one of the relevant units of study in semester one of 2022 (that being MATH1052 – Multivariate Calculus & Ordinary Differential Equations).

   [50] Transcript, 2 August 2023, page19, lines 23 to page 2, line 2.

4. I am not persuaded by the submissions of the applicant with respect to his prior knowledge and understanding of some of the units of study he was undertaking in semester one of 2022 as a reason for his ability to pass two of the units of study (the units of which he is not seeking a recredit of his HECS-HELP debt, being COMP2048 – Theory of Computing, and CSSE2002 – Programming in the Large). I agree with the respondent’s contention that evidence exists to the contrary, that it is likely the applicant would have studied concepts previously taught in mathematics which would have been relevant to his overall failed attempt at MATH1052 – Multivariate Calculus & Ordinary Differential Equations (which the applicant is now seeking a recredit of his HECS-HELP debt)[51].

   [51] Exhibit R1, page 24, paragraph 89.

5. I am not persuaded by the submissions of the applicant that he was unable to do the requisite study due to the length and severity of his recovery post his operation on  6 June 2022, which was the week before final examinations which he chose to sit[52].

   [52] Transcript, 2 August 2023, page 31, lines 20 to 47, page 32, lines 1 to 16.

6. Evidence relied upon by the applicant from Dr Broadhurst (27 September 2022) and            Dr Caulley (14 November 2022) both restate the applicant’s self-reported symptoms the applicant experienced in his recovery following his operation on 6 June 2022, by stating the applicant had reported that his symptoms had resolved much later by the end of July 2022.

7. I am of the view that the applicant’s evidence and submissions with respect to his post operative recovery do not accord with contemporaneous medical evidence which is in existence just a few short weeks following his surgery.

8. A letter from Dr Broadhurst of 23 June 2022, reports that post operatively the applicant, “…had some swallowing difficulties early on which unfortunately is fairly common for these patients but resolves. Overall things have resolved dramatically which is very encouraging for him. Examination showed clear voice and no difficulty with swallowing. Videosroboscopy showed normal vocal fold mobility, closure and pliability with no pooling of saliva in the piriform sinuses. At this stage, all looks satisfactory and I am very happy with the progress…”[53]. [Bold for emphasis]

   [53] Exhibit TR2, supplementary section 37 T Documents, ST15, page 579.

9. I note the contemporaneous consultation notes from the applicant’s GP on 1 July 2022, where Dr McIntosh stated that, “… one week after surgery started to feel much better…”[54].

   [54] Exhibit TR2, supplementary section 37 T Documents, ST5, page 521.

10. The applicant’s position was that Dr Broadhurst was referring to the symptoms he had suffered post operatively, not to his overall condition as a result of RCG[55].

    [55] Transcript, 2 August 2023, page 30, lines 35 to 47, page 31, lines 1-4.

11. I note the applicant stated that he suffered other symptoms such as fatigue and weight loss which I accept take some time to overcome, but in the same consultation note Dr McIntosh wrote of 1 July 2022, it was recorded that the applicant had gained five kilograms of weight in a period of three weeks. Further, during cross examination the applicant conceded that the surgery he underwent was “small”[56].

    [56] Transcript, 2 August 2023, page 32, line 11.

12. It is for the reasons I have outlined that I am not persuaded that the applicant’s medical condition was such that he would have been unable to continue his course requirements. On reflection of the evidence before me and for the reasons I have outlined, I am of the view that whilst it would have been difficult for the applicant to complete the requirements of the relevant units of study, I am not persuaded that it would have been impractical for him.

13. As such, I am of the view that the applicant’s medical circumstances did not make it impracticable for him to complete the requirements of the relevant units of study, therefore I am of the view the applicant did not satisfy the third limb of the legislative test set out in section 97-30(1)(c) of the Act.

    Summary

14. As stated in these reasons, for special circumstances to be established, pursuant to section 97-30(1) of the Act, all limbs of the legislative test must be satisfied (that is, section 97-30(1)(a), (b) and (c)).

15. Special circumstances apply to a person where it is established that the circumstances (1) were beyond the person’s control; and (2) did not make their full impact on the person until on or after the census date for the unit of study; and (3) made it impracticable for the person to complete the requirements for the unit during the period which the person undertook or was to undertake the units of study.

16. In earlier reasons I found that the applicant’s medical circumstances made its full impact on him after the census date and therefore satisfied section 97-30(1)(b) of the Act.

17. However, I found that the applicant’s medical circumstances were not beyond the control of the applicant, and that they did not make it impracticable for him to complete the requirements of the relevant units of study. I therefore found that the applicant failed to satisfy sections 97-30(1)(a) and (c) of the Act.

18. As I have found the applicant did not satisfy two of the limbs of the cumulative legislative test with respect to establishing special circumstances, pursuant to section 97-30(1) of the Act, I find the applicant does not satisfy the requirements of section 97-25(c) of the Act.

    DECISION

19. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), I affirm the reviewable decision of the respondent dated 17 October 2022.

    I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola.

    …………[SGD]………………

    Associate

    Date: 22 August 2023

    Date of Hearing:  2 August 2023

    Applicant:  Mr William Peter Cruickshank

    Support person of the Applicant:       Mr Mark Cruickshank

    Respondent:  Secretary, Department of Education

    Respondent Representative:             Myles Norris, Department of Education

    Respondent’s observers:                   Maple Ko, Department of Education

    Louis Saunders, Department of Education

    Annexure 1 – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
TR1.	Section 37 T-Docs	R	-	13.12.2022
TR2.	Supplementary Section 37 T-Docs	R	-	03.07.2023
R1.	Respondent Statement of Facts, Issues & Contentions	R	03.07.2023	03.07.2023
A1.	Unofficial Academic Transcript and Covering Email	A	-	16.12.2022
A2.	Applicant Response to Respondent Statement of Facts, Issues & Contentions	A	31.07.2023	31.07.2023

   Documents, ST18, page 585.

    supplementary section 37 T Documents, ST7, pages 536 and 537.