Currie and Secretary, Department of Education and Training - [2017] AATA 1431

Currie and Secretary, Department of Education and Training [2017] AATA 1431 (1 September 2017)
Division:GENERAL DIVISION
File Number: 2016/4225
Re:Vincent Currie
APPLICANT

AndSecretary, Department of Education and Training
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:1 September 2017
Place:Brisbane

The Tribunal affirms the decision under review.
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.....[Sgd]...............................................
Member D K Grigg
CATCHWORDS
HIGHER EDUCATION –– late withdrawal – whether any special circumstances exist- decision under review affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth)
Higher Education Support Act 2003 – Administration Guidelines 2012
REASONS FOR DECISION
Member D K Grigg
1 September 2017
INTRODUCTION

In Semester One, 2016, Mr Currie enrolled as a student in four subjects as part of a Graduate Diploma of Science at the University of Southern Queensland (“USQ”).[1] Mr Currie successfully submitted initial assessments in two of the four subject units (that is, STA3300 and MAT2409), however he did not complete all the assessments for those subject units.[2] In relation to the other subjects (STA 8005 and STA 8180). Mr Currie did complete the assessments, albeit not always by the due date, and was ultimately awarded a high distinction.[3]
[1]           Exhibit 1, T Documents, T 4, page 21, USQ Enrolment Records.
[2]           Exhibit 1, T Documents, T 19, pages 127 – 129, Screenshots of Mr Currie's participation in unit of study
MAT2409; T 21, pages 133 – 135, screenshots of Mr Currie's participation in unit of study STA 3300.
[3]           Exhibit 1, T Documents, T 24, Mr Currie's unofficial academic transcript and results.
Pursuant to the Higher Education Support Act 2003 (Cth) (“the Act”) a higher education provider must set census dates under section 169.25. In order to withdraw from enrolment in a course without any financial penalty the application must be lodged prior to the census date. The USQ census date for Semester One 2016 was 25 March 2016 (“Census Date”).[4]
[4] Exhibit 1, T Documents, T5, page 23, USQ Semester One, 2016 Important Dates.
After the Census Date, on 7 June 2016, Mr Currie submitted an Application for Withdrawal without Academic and Financial Penalty (“Withdrawal Application”) from subjects STA2300 and MAT2409, accompanied by a letter dated 7 April 2016 from Dr Morgan Pokorny to Dr Paul Alexander concerning Mr Currie’s father’s medical treatment.[5] Mr Currie submitted in his Withdrawal Application that there were special circumstances, as a result of his father’s medical condition, which should enable him to withdraw from his enrolment without penalty.
[5] Exhibit 1, T Documents, T 13, pages 96 – 104, Application for Withdrawal without Academic and Financial
Penalty dated 7 June 2016.
On 27 June 2016 USQ denied Mr Currie’s Withdrawal Application on the grounds that:[6]
(a)the special circumstances relied upon by Mr Currie were pre-existing; and
(b)Mr Currie’s supporting documentation did not demonstrate the:
(i)impact the circumstances had on his ability to complete his studies; or
(ii)date on which the relevant impact of the circumstances arose.
[6] Exhibit 1, T Documents, T 14, pages 105 – 109, Letter from USQ to Mr Currie dated 27 June 2016.
Claims History
Mr Currie requested a review of USQ’s decision (“ Review Application”)[7] and provided a medical certificate issued by Dr Alexander which certified that Mr Currie’s father had: [8]
(a)been suffering from multiple medical conditions since 1 May 2015;
(b)been admitted to hospital on 2 occasions; and
(c)visited his general practitioner on 12 occasions.
[7] Exhibit 1, T Documents, T 15, pages 110 – 111, Mr Currie's Application for Review of Decision dated 29 June
2016.
[8] Exhibit 1, T Documents, T 16, page 116, Medical Certificate of Dr Alexander dated 29 June 2016.
Mr Currie’s Review Application was rejected by USQ on the grounds that Mr Currie had not demonstrated that the circumstances made an impact on his ability to study or that any impact occurred on or after the Census Date (“Review Decision”).[9]
[9] Exhibit 1, T Documents, T 17, pages 122-123, Letter from USQ to Mr Currie dated 8 August 2016; The Review
Decision only refers to subject STA 2300 however the Secretary submits, and Mr Currie agrees, that this appears to be a clerical error and the decision was intended to be in relation to STA3300. Further the Secretary submits that whilst the Review Decision did not expressly reject Mr Currie’s application for review in relation to MAT2409 that USQ is taken to have confirmed the original decision in relation to that unit under section 209.10(6) of the Act because no notice of a decision in relation to that unit was given to Mr Currie within 45 days after the Review Application was received: Pursuant to section 209.10(6) of the Act the reviewer is taken to have confirmed the decision if the reviewer does not give notice of a decision to the person within 45 days after receiving the person's request.
On 10 August 2016 Mr Currie lodged an application for review of the Review Decision by this Tribunal.[10]
[10] Exhibit 1, T Documents, T1, pages 1-10, Application for Review dated 10 August 2016.
RELEVANT LEGISLATION
A higher education provider must charge, in accordance with the requirements of the Act, student contribution amounts and tuition fees for each unit of study in which it enrols students: section 19.85 of the Act.[11]
[11] How a student’s contribution amount is determined under the Act is not relevant here.
Section 36.20 of the Act provides for a situation in which a higher education provider must refund to a student the student’s contribution amount in relation to a particular subject unit. Section 36.20 of the Act provides, relevantly, as follows:
Providers to repay amounts--special circumstances
(1) A higher education provider must, on the * Secretary's behalf, determine that this section applies to a person if:
(a) the person has been enrolled as a * Commonwealth supported student with the provider in a unit of study; and
(b) the unit would, if completed, form part of a * course of study undertaken with that provider or another higher education provider; and
(c) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and
(d) the provider is satisfied that special circumstances apply to the person (see section 36-21); and
(e) the person applies in writing to that provider for either or both:
(i) the repayment of any amounts that the person paid in relation to his or her * student contribution amount for the unit; or
(ii) the remission of the person's * HECS-HELP debt in relation to the unit; and
(f) either:
(i) the application is made before the end of the application period under section 36-22; or
(ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.
(2) If the provider determines that this section applies to a person, the provider must:
(a) pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her student contribution amount for the unit; and
(b) pay to the Commonwealth an amount equal to any HECS-HELP assistance to which the person was entitled for the unit.
Section 36.21(1) of the Act sets out 3 conditions that must be satisfied in order for special circumstances to apply to a person for the purposes of section 36.20(1)(d) of the Act. Those conditions are that the circumstances in question:
(a)are beyond the person's control; and
(b)do not make their full impact on the person until on or after the census date for the unit of study; and
(c)make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
Section 36.21(2) of the Act states that decisions made by higher education providers under section 36.21 of the Act must be made in accordance with any guidance provided in the Higher Education Support Act 2003 – Administration Guidelines 2012 (“Administration Guidelines”).[12] Chapter 3 of the Administration Guidelines provides guidance in relation to what will constitute special circumstances.
[12] The Administration Guidelines are a binding legislative instrument within the meaning of s 5 of the Legislative
Section 36.22 defines application period for the purposes of section 36.20(1)(f)(i) as follows:
Application period
(1) For the purposes of subparagraph 36-20(1)(f)(i), if:
(a) the person has withdrawn his or her enrolment in the unit of study; and
(b) the higher education provider gives notice to the person that the withdrawal has taken effect;
the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.
(2) If subsection (1) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.
ISSUES FOR DETERMINATION
The issues for determination are whether or not:
(a)Mr Currie had completed the requirements for STA2300 and MAT2409 in Semester One: section 36.20(c) of the Act; and, if not
(b)whether any special circumstances apply to Mr Currie in accordance with section 36.21 of the Act; and, if yes
(c)Mr Currie applied in writing to USQ for the repayment of any amounts that he had paid in relation to his student contribution for STA2300 and MAT2409: section 36.20(e)(i) of the Act; and
(d)Mr Currie’s application was made before the end of the application period under section 36.22 of the Act: section 36.20(f)(i) of the Act; or
(e)USQ waived the requirement that the application be made before the end of the application period: section 36.20(f)(ii) of the Act.
DID MR CURRIE COMPLETE THE REQUIREMENTS FOR THE UNITS IN SEMESTER ONE? [section 36.20(c)]
It is not in dispute that Mr Currie was enrolled as a Commonwealth supported student[13] with USQ in units of study in Semester One of 2016 and that if those units had been completed that they would form part of a course of study undertaken with USQ. Therefore, sections 36.20(a)-(b) of the Act are satisfied.
[13] Exhibit 1, T Documents, T3, Mr Currie's Request for Commonwealth Support and HECS-HELP, dated 22 July
2014; T10, page 79, Commonwealth Assistance Notice for Mr Currie for the Census date range 5 December 2015 to 25 March 2016.
It is not in contention that Mr Currie completed units STA 8005 and STA 8180 and did not complete STA 3300 and MAT 2409.[14] Therefore Mr Currie satisfies 36.20(c) in relation to units STA 3300 and MAT 2409.
DO SPECIAL CIRCUMSTANCES APPLY TO MR CURRIE IN ACCORDANCE WITH SECTION 36-21? [SECTION 36.20(D)]
[14] Exhibit 1, T Documents, T2, page 12, Secretary’s Section 37 Statement dated 27 September 2016, para 7.
The Circumstances Relied on by Mr Currie
Mr Currie contends that the special circumstances which satisfy section 36-21 of the Act are:
(a)his mental health issues; and
(b)the level of assistance he was required to provide his parents due to his father's medical conditions.
Mr Currie says that between 14 March and early July 2016 he was suffering from mental health issues which caused him to be unfit for his university studies. In support, Mr Currie relies on:
(a)a medical certificate of Dr Paul Alexander, dated 10 August 2016 which states that Mr Currie “was suffering from a medical condition and was unfit for university” from 1 May 2016 to 3 July 2016. There is also a handwritten note on the medical certificate, presumably written by Dr Alexander, to say that there were “significant family illnesses during this period that resulted in mental stress [and] anxiety symptoms for the period stated above” (“August Medical Certificate”);[15] and
(b)a medical certificate of Dr Alexander, dated 13 October 2016, which states that Mr Currie was suffering from “an acute exacerbation of symptoms consistent with anxiety and depression” from 14 March to early July 2016, and that these symptoms caused him to be “unfit” for study (“October Medical Certificate”).[16]
[15] Exhibit 1, T Documents, T 11, page 85, Medical Certificate of Dr Alexander dated 10 August 2016.
[16] Exhibit 1, ST1, p.232, Medical Certificate of Dr Alexander dated 13 October 2016.
In a document prepared by Mr Currie entitled “Summary of Events” (“SOE”) Mr Currie says that his father suffered from a number of medical conditions during the relevant period, including:[17]
(a)an anterior urethral stricture requiring him to undergo a flexible cystoscopy and urethral dilatation on 14 January 2016;[18]
(b)bronchial pneumonia which required an admission to hospital from 15 January 2016;
(c)being fitted with a catheter and bag between 8 and 19 February 2016, during which time his father could not drive and was mostly bedbound;
(d)a period of ill health from 3 to 9 March 2016 following a collapse and hospitalisation which were initially attributed to a heart attack but was subsequently attributed to a middle ear condition;
(e)a bladder/prostate issue requiring a further flexible cystoscopy on 7 April 2016, after which a catheter was inserted until it was removed on or about 15 April 2016;[19] and
(f)a period of illness due to issues relating with his prostate, commencing on 1 May 2016 with one week in hospital, which resulted in the Applicant's father being bed bound for an unspecified further period.
[17]         Exhibit 4, Summary of Events prepared by Mr Currie.
[18]         Exhibit 1, T Documents, page 104, Report of Dr Pokorny dated 7 April 2016.
[19]         Exhibit 1, T Documents, page 104, Report of Dr Pokorny dated 7 April 2016.
In relation to Mr Currie’s written answers to questions asked by the Secretary prior to the hearing,[20] Mr Currie said it was around 4 June 2016 when his father had bronchial pneumonia, not January 2016 (as per his SOE) and that he could no longer continue with his studies and that his father was in hospital for the entire examination period and beyond.
[20] Exhibit 6, Mr Currie’s answers to question asked by the Secretary.
At the hearing Mr Currie corrected his SOE. Mr Currie says his father had pneumonia in late May 2016, not January 2016, but said that he was stubborn and did not want to go to the doctor. Mr Currie says he recalls eventually having to calling an ambulance.
Mr Currie told the Tribunal that the SOE had been prepared to his best recollection but he is not clear as to the precise dates and that the SOE is incorrect because he did not actually start university until April 2016 and did not leave work until 1 April 2016.
Mr Currie says he spent approximately 50% of his time assisting his parents during the periods of time between:
(a)3 and 9 March 2016;
(b)4 and 15 April 2016; and
(c)1 May 2016 and 29 June 2016.
At the hearing Mr Currie said the main period of assistance that his father required was when the catheter was inserted and also in the lead up to his father’s hospital admission for pneumonia. Mr Currie said he assisted his parents by driving them around to appointments and so on and probably assisted them 2 – 3 days per week around 50% to 75% of those days.
Were the Circumstances Relied on By Mr Currie Beyond His Control? [Section 36.21 (1) (a)]
The Administration Guidelines provide guidance as to what will constitute circumstances beyond a person’s control in section 3.5:
3.5       CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1    A higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
3.5.5    The situation referred to in paragraph 3.5.5 must be unusual, uncommon or abnormal.
Mr Currie’s Father’s Medical Condition
Mr Currie submits that his father's illness, and consequent care requirements, are circumstances which were out of his control.
The Secretary accepts that Mr Kevin Currie, Mr Currie's father, suffered from a number of medical conditions throughout the relevant period. However, the Secretary does not accept that Mr Currie’s father’s conditions only made their full impact on Mr Currie, through an increase in care obligations, until after the Census Date.[21] Mr Currie acknowledges that events were happening prior to the Census Date but he says the main event occurred in early June 2016 and that up until 27 May 2016 he was still coping but sometime around that time, when his father was admitted to hospital it all became too much.
[21] Exhibit 2, Secretary’s Statement of Facts Issues and Contentions dated 2 June 2017, para 36.
The Tribunal accepts that Mr Currie’s father suffered from a number of medical conditions in Semester 1 of 2016 and these conditions were beyond his control.
Insufficient Evidence of Mr Currie’s Medical Condition
The Secretary contends that the evidence does not demonstrate that Mr Currie was suffering from symptoms of his mental health conditions during the relevant time period, and that condition is therefore incapable of forming the basis for a claim of special circumstances.
Medical records obtained by the Secretary disclose that Mr Currie:
(a)was prescribed a course of fluoxetine, an anti-depressant, on a number of dates between 20 February 2013[22] and 29 June 2015, to treat depression and anxiety symptoms;
(b)the fluoxetine prescription ceased on 26 August 2015;[23]
(c)was not prescribed anti-depressants in March 2016, or at any point between August 2015 and July 2016;
(d)was not prescribed with any anti-depressant or anxiety medication until 27 July 2016 (when he was prescribed with Lovan) after Semester 1 had ended; and
(e)did not attend a consultation with his general practitioner during the time period covered by the August and October Medical Certificates.
[22] Exhibit 1, T Documents, ST1, page 185, Medical records concerning Mr Currie dated 20 February 2013.
[23] Exhibit 1, T Documents, ST1, page 188, Medical records concerning Mr Currie dated 26 August 2015.
At the hearing Mr Currie conceded that he had stopped taking any medication to treat his mental health conditions prior to January 2016 because he felt okay at that time. However, he says he subsequently found it hard to focus his thoughts and began to feel anxious and had emotional outbursts of anger or sadness. Mr Currie initially submitted, in his SOE, that his doctor started him on medication again in or around March 2016.[24] Mr Currie also says that when his father became ill in May 2016 through to June 2016 he became “personally overwhelmed with anxiety, depression and frustration” and that while that did not mean that he was totally incapacitated it seriously impaired his thinking abilities and made it difficult for him to cope.[25]
[24] Exhibit 4, Summary of Events prepared by Mr Currie.
[25] Evidence given at the hearing and see also Exhibit 4, Summary of Events prepared by Mr Currie.
However, there are no medical records to corroborate that Mr Currie was being treated by his general practitioner between March 2016 and June 2016 for mental health concerns.
At the hearing Mr Currie acknowledged that he had not seen Dr Alexander in Semester 1 of 2016. Mr Currie said that in July 2015 he saw Dr Alexander who prescribed him with anti-depressants with enough repeats to last him until December 2015. However after that he became concerned about the long-term effects of taking antidepressant medication and decided to look for alternative ways to manage his depression. Mr Currie says he consulted with a social worker provided by his employer in February 2016.[26] In an email dated 15 February 2016 from Mr Currie to his employer he says he will be applying for leave from March to August 2016 to assist his family. Mr Currie says that he was arranging to take leave from his employer because he was feeling exhausted by the time given to his family situation. Mr Currie said his condition was exacerbated when his father went into hospital.
[26] Mr Currie's response to the Secretary’s Statement of Facts Issues and Contentions.
The August and October Medical Certificates

The Secretary submits that the August and October Medical Certificates relied on by Mr Currie are not reliable for 4 reasons:[27]
(a)the information contained therein is based solely upon Mr Currie’s recollection and Mr Currie admits that his recollection is not good and this is evidenced by the fact that 2 different dates are provided for in the certificates;
(b)the August and October Medical Certificates are not based on actual observations by Dr Alexander and;
(c)the Tribunal is unable to compare periods before and after the Census Date because the medical certificates referred to a certain period of time;
(d)Dr Alexander’s conclusion that Mr Currie was “unfit” is incorrect because Mr Currie was able to complete 2 courses in that period.
[27] Exhibit 2, Secretary’s Statement of Facts Issues and Contentions dated 2 June 2017, para 35.
Mr Currie said he made an appointment to obtain the August and October Medical Certificates in August 2016 and October 2016 and told Dr Alexander why he needed them and the periods that he had been experiencing difficulties. Mr Currie was asked if his recollections of the dates when his mental health issues and his father’s health issues were incorrect? Mr Currie said yes and that would explain why the August and October Medical Certificates have different dates as to when he did become unfit.
The August and October Medical Certificates provide that Mr Currie was “unfit for studies”, however the Secretary submits that this does not necessarily mean “full-time” studies and that in fact at that time Mr Currie completed 2 of his other subjects. Mr Currie says the only reason he was able to pass those other subjects was because he had been granted extensions of time.
The medical records indicate that Mr Currie had not seen Dr Alexander between August 2015 and 22 July 2016. The August and October Medical Certificates completed by Dr Alexander were not, as was confirmed by Mr Currie at the hearing, based on an examination made by Dr Alexander. Mr Currie acknowledged that Dr Alexander had prepared the medical certificates to support his Withdrawal Application. However, Mr Currie says the August and October Medical Certificates can still be relied upon because Dr Alexander had been his family doctor for 17 to 18 years and was fully aware of his family situation and his mental health conditions.
There is insufficient corroborating medical evidence to demonstrate that Mr Currie was, in fact, suffering from anxiety and depressive symptoms during the relevant period. Although Dr Alexander has provided medical certificates to support Mr Currie’s contention, Mr Currie did not actually attend any consultations with Dr Alexander during the relevant period. Dr Alexander’s August and October Medical Certificates were provided after the fact based on what Mr Currie reported to Dr Alexander rather than any diagnosis made by Dr Alexander.
Further, the medical evidence indicates that if Mr Currie was suffering from mental health conditions, this arose prior to the Census Date and therefore Mr Currie should have withdrawn before then and avoided any penalty (particularly if, as he previously claimed, he had been prescribed medication for his conditions on or about 14 March 2016).[28]
[28] Exhibit 4, Mr Currie's Summary of Events.
There is no corroborating evidence that Mr Currie’s mental health condition worsened until he consulted Dr Alexander on 27 July 2016. In the absence of corroborating evidence the Tribunal cannot be satisfied as to when the exacerbation of Mr Currie’s mental health issues arose.
Mr Currie pointed to the fact that the subjects in which he was enrolled required approximately 40 hours a week[29] and that whilst he might have had some time available in addition to assisting his parents, his mental health was having such an impact that he was absolutely exhausted, had no motivation, found it difficult to focus and had extreme mood swings. He says he was operating at less than half his capacity.
[29] Exhibit 1, T Documents, T18, pages 124-126, MAT2409 Course Specification 2016; T20, pages 130-132,
STA3300 Course Specification 2016
I note however that in Mr Currie’s original emails to USQ in early June 2016, where he requested the late subject withdrawal due to personal hardship, at no time does he make any mention of any personal medical conditions and refers only to having lost time due to the support he was giving to his elderly parents.[30]
[30] Exhibit 1, T Documents, T 12, page 92, email from Mr Currie to USQ regarding withdrawal application dated 4
June 2016; T 13, page 98, Email from Mr Currie to USQ dated 7 June 2016.
Based on the insufficiency of the evidence available, the Tribunal is unable to consider Mr Currie’s alleged mental health issues as a special circumstance for the purposes of section 36.20 of the Act.
Did the Circumstances Make Their Full Impact on Mr Currie on or after the Census Date for the Unit of Study? [Section 36.21 (1) (b)]
The Administration Guidelines provide clause 3.10:
The Administration Guidelines, at clause 3.10, 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.
The Secretary submits that the test for special circumstances has very strict requirements and that factors that make their full impact on a person before the Census Date are not special circumstances.
There is an absence of medical evidence to corroborate Mr Currie’s timeline of events. The Secretary points to the fact that there was a number of hospital visits, in relation to Mr Currie’s father’s prostate issues, prior to the Census Date and that Mr Currie’s father’s cystoscopy in early April 2016 had been booked prior to the Census Date. The Secretary submits that the circumstances were not more severe after the Census Date and therefore the circumstances do not fall within section 36-21(1) of the Act.
In the Secretary’s submission Mr Currie’s father’s medical conditions arose prior to the Census Date and that, despite Mr Currie’s evidence of the timeline, the medical records should be authoritative.
The medical documentation produced by Mr Currie’s father's general practitioner and the Metro North Hospital and Health Service, which includes documents from the Redcliffe, Caboolture and Royal Brisbane and Women's Hospitals, demonstrates inaccuracies in Mr Currie’s evidence.
The medical evidence obtained by the Secretary indicates that Mr Currie’s father:
(a)was booked on 30 October 2015 to undergo a flexible cystoscopy on 14 January 2016;
(b)underwent a flexible cystoscopy and urethral dilation on 14 January 2016, and was diagnosed as suffering from an anterior urethral stricture;[31]
[31]         Exhibit 1, T Documents, ST 2, page 326.
(c)attended the emergency department at Redcliffe Hospital on 18 January 2016 complaining of urinary retention, and was fitted with a catheter before being discharged later that day; [32]
[32]         Exhibit 1, T Documents, ST 2, page 326.
(d)attended his general practitioner on 28 January 2016 for follow-up in relation to urology issues. In the course of that consultation, it was noted that Mr Currie’s father would be undergoing a repeat cystoscopy in three months; [33]
[33]         Exhibit 1, T Documents, ST 2, page 326.
(e)underwent a trial of void at Redcliffe Hospital on 12 February 2016, after which his catheter was successfully removed;
(f)was taken to Caboolture Hospital by ambulance on 24 February 2016, due to vertigo related issues, and was subsequently discharged on the same day;
(g)attended his general practitioner on 28 February 2016 in relation to the vertigo issue;
(h)attended the emergency department at Caboolture Hospital on 3 March 2016 in relation to 'acute vertigo', and was discharged on the same day;
(i)attended his general practitioner again on 14 March 2016 in relation to vertigo;[34]
(j)reported to his general practitioner on 21 March 2016 that he was now “much better” and was no longer suffering from issues in relation to his vertigo;[35]
(k)attended 14 general practitioner appointments concerning issues in relation to skin lesions, and for blood pressure tests and medication reviews, between 23 March 2016 and 7 June 2016;[36]
(l)underwent a further flexible cystoscopy on 7 April 2016, after which a catheter was inserted;
(m)had the catheter removed following a successful trial of void on 22 April 2016;
(n)attended his general practitioner in relation to concerns that he had a respiratory tract infection on 31 May 2016, with his general practitioner finding that he did not have a fever, and his chest was clear;[37] and
(o)was hospitalised, at Caboolture Hospital, due to pneumonia from 18 to 21 June 2016.
[34]         Exhibit 1, T Documents, ST 2, page 328.
[35]         Exhibit 1, T Documents, ST 2, page 328.
[36]         Exhibit 1, T Documents, ST 2, pages 328 – 333.
[37]         Exhibit 1, T Documents, ST 2, page 332.
There is no corroborating medical record to support Mr Currie’s contention that his father was hospitalised in early May 2016 or early June 2016.
The medical evidence demonstrates Mr Currie’s father had various ongoing medical conditions between January 2016 and June 2016 primarily relating to his urology conditions. This does not support Mr Currie’s contention that his care obligations for his father did not make their full impact until on or after the Census Date. Nor, as the Secretary submits, does this support Mr Currie’s contention that he gave as much assistance to his parents as he contends.
It was pointed out to Mr Currie that the records of Dr Alexander indicate that as at 31 May 2016 his father’s chest was clear and there is no record of him suffering from pneumonia. In response Mr Currie said “are the medical records complete? All I know is he was sick”.
In relation to the medical records Mr Currie referred to the fact that one of the records describes him as a “heavy drinker” which he says is not true and again reiterated that medical records must not be complete. When I asked him if he had made any attempt to obtain the records that he contends are missing to corroborate his story he said no.
Mr Currie accepted at different times throughout the hearing that his recollection of events and dates may not be 100% accurate but he said “why would I throw everything away at the last minute?” He says he had legitimate reasons to withdraw at that late stage because of his family crisis. Mr Currie said he had not anticipated, at the beginning of Semester 1, that his father would be admitted to hospital. He says there was nothing in his father’s medical history in the past to indicate that there would be a likelihood of this occurring in Semester 1 of 2016. Mr Currie says the only reason he was able to complete the other 2 subjects was because he had significantly completed the assessment for those subjects before the date he had to withdraw.
Mr Currie eventually said he “cannot argue with the medical records so when I said things occurred at certain times it’s probably because I did not recall” the exact dates.
There is also no reference to Mr Currie’s father suffering from pneumonia in the emails from Mr Currie to USQ between 4 June 2016 and 7 June 2016.[38] Mr Currie’s response was to say that when he lodged the Withdrawal Application his father’s condition was worsening and that he had only provided a summary of his father’s ailments. Mr Currie accepted there was no reference to his father suffering from pneumonia in his email communications with USQ. The Withdrawal Application also made no mention of his father suffering from pneumonia. Given, as Mr Currie says, it was a primary cause of Mr Currie’s application for withdrawal it seems strange that it was not referred to in the Withdrawal Application or correspondence with USQ. Nor was it referred to in Mr Currie’s SOE. Mr Currie’s response was to say there were a lot of issues and he did not necessarily list all of them. Mr Currie said he had provided USQ with a medical certificate dated 29 June 2016 from Dr Alexander (“June Medical Certificate”) which did make mention of his father’s pneumonia.[39]
[38] Exhibit 1, T Documents, T12, page 86, Email from Mr Currie to USQ dated 4 June 2016.
[39] Exhibit 1, T Documents, T 16, page 116, Medical Certificate of Dr Alexander dated 29 June 2016.
The June Medical Certificate says that Mr Currie’s father was suffering from renal tract and prostate abnormalities and bronchopneumonia in the period 1 May 2016 to 29 June 2016. However, Dr Alexander did not identify exactly when in that period Mr Currie’s father had pneumonia. The medical records indicate that Mr Currie’s father:
(a)did not have pneumonia as at 31 May 2016;
(b)was not admitted to hospital until 18 June 2016; and, importantly
(c)was not admitted to hospital until after Mr Currie’s examination period.
The reasons given by Mr Currie in the Withdrawal Application and emails to USQ are more likely to be accurate than Mr Currie’s later recollections. Mr Currie’s father was not admitted to hospital until after Mr Currie’s final examinations of 14 – 15 June 2016. Mr Currie says he delivered on 3/5 of the assessment for 2 subjects but by then the crisis occurred and he was unable to cope with the completion of the final assessments. However, in an email from Mr Currie to USQ dated 7 June 2016, Mr Currie wrote that one of the reasons he wishes to withdraw was because he was “too far behind”.[40] At the hearing Mr Currie said that was correct.
[40] Exhibit 1, T Documents, T 12, page 87, Email from Mr Currie to USQ dated 7 June 2016.
The Secretary contends that Mr Currie’s father's illness:
(a)made its full impact on Mr Currie before the Census Date; and
(b)did not make it impracticable for Mr Currie to complete the requirements for the relevant units.
Prior to the Census Date, the medical evidence, demonstrates that Mr Currie’s father:
(a)had a flexible cystoscopy on 14 January 2016;
(b)was being fitted with a catheter on 18 January 2016, which was subsequently removed on 12 February 2016;
(c) was taken to Caboolture Hospital by ambulance due to vertigo on 24 February 2016; and
(d)attended at his GP in relation to the above conditions on a range of dates, and in relation to the removal of two skin lesions on 23 March 2016.
The evidence also shows that Mr Currie took time off work in January 2016 (as evidenced by a medical certificate issued by Dr Nilesh Champaneri at Mr Currie's request, with respect to the period from 19 to 21 January 2016. Dr Champaneri's notes from the relevant consultation indicate that Mr Currie had been absent from work to care for his father since 15 January 2016 (after his father returned home from hospital suffering urinary tract problems), and was intending to return to work on 25 January 2016.[41]
[41]Exhibit 1, ST1, p.188 and p.230, Medical Certificate and Notes of Dr Champaneri dated 20 January 2016.
This evidence supports a finding that Mr Currie's father's illness, and resulting care needs, arose prior to the Census Date. There is no corroborating evidence that the full effect or magnitude of the circumstances did not become apparent until on or after the Census Date, or that the circumstances worsened after that day.
The evidence shows that Mr Currie's father's medical treatment between the Census Date and the date on which Mr Currie submitted his Withdrawal Application, being 7 June 2016, was limited to:
(a)general practitioner consultations for routine checks, wound care and similar minor issues; and
(b)a further flexible cystoscopy, followed by insertion of a catheter, on 7 April 2016, which had been scheduled prior to the Census Date, on 14 January 2016, after the first cystoscopy.
The cystoscopy was scheduled before the Census Date, and arose from an ongoing condition, and therefore does not support Mr Currie’s claim that his father’s circumstances worsened after the Census Date. Further, that Mr Currie’s father was due to have a further cystoscopy on 7 April 2016 was known by Mr Currie on or around 14 January 2016, that is prior to enrolling in the subjects and 2 months in advance of the Census Date.
Mr Currie’s father was not hospitalised with pneumonia until 18 June 2016, which is nearly 2 weeks after the date Mr Currie filed his Withdrawal Application. There is no corroborating medical evidence that Mr Currie's father was suffering from pneumonia as at 7 June 2016, the date that Withdrawal Application was submitted. As the Secretary identified, the medical records show that on 31 May 2016 Mr Currie's father did not have a fever, and his chest was “clear”.
The evidence does not support Mr Currie’s contention that his father’s medical conditions arose after the Census Date or that they deteriorated between the Census Date and the date of Mr Currie’s Withdrawal Application.
Did the circumstances make it impracticable for Mr Currie to complete the requirements for the unit during the period during which Mr Currie undertook, or was to undertake, the unit? [Section 36.21 (1) (c)]
Given that I have found that Mr Currie does not satisfy section 36.21(1)(b) of the Act, it is unnecessary for me to consider whether or not the circumstances relied upon by Mr Currie made it impracticable him to complete the requirements of the relevant units.
However, there is no evidence that the circumstances made it impracticable for Mr Currie to complete the requirements for the units of study. By the time of Mr Currie’s Withdrawal Application, he had already achieved high distinctions in 2 subjects and was not working. The Tribunal notes that, based on Mr Currie’s own evidence, he would have had 4 to 6 days available, when he was not assisting his parents, to put to his studies. I note that Mr Currie says that being under extreme stress meant he was unable to do certain things such as focus and study and that it got to the point that when his father was admitted to hospital it became impossible for him to do so. However, there was no corroborating evidence to support Mr Currie’s claim.
CONCLUSION
Mr Currie’s appeal fails. The decision under review is affirmed.

I certify that the preceding (sixty - eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

........................[Sgd]................................................
Associate
Dated: 1 September 2017

Date of hearing: 4 August 2017

Applicant: In person

Solicitors for the Respondent: Maddocks Lawyers

Instruments Act 2003 (Cth).

Date of hearing:	4 August 2017
Applicant:	In person
Solicitors for the Respondent:	Maddocks Lawyers