Cutajar and Secretary to the Department of Education, Training and Youth Affairs

[2000] AATA 975

DECISION AND REASONS FOR DECISION [2000] AATA 975

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº V00/333

GENERAL  ADMINISTRATIVE  DIVISION)                 
           Re:     JAMES CUTAJAR  

Applicant

And:    SECRETARY TO THE DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS      

Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member         

Date:8 November 2000

Place:Melbourne

Decision       The decision under review is affirmed.   

(sgd) H.E. Hallowes
           Senior MemberEDUCATION — higher education contribution scheme debt — whether withdrawal from course before census date — whether debt should be remitted
Higher Education Funding Act 1988 s.106L
Secretary, Department Education, Training and Youth Affairs v Ellem (2000) 173 ALR 300

REASONS FOR DECISION

8 November 2000  Mrs H.E. Hallowes, Senior Member

1. The Tribunal is satisfied from the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") ("the AAT Act") that Mr Cutajar seeks review of a decision of a delegate of the Secretary to the Department of Education, Training and Youth Affairs made on 16 February 2000, which affirmed, on internal review, a decision made on 21 January 2000 not to remit Mr Cutajar's Higher Education Contribution Scheme ("HECS") debt in respect of his enrolment in the subject Business Law MLC101 in Semester 1 1999 at Deakin University ("the University"). The respondent provided the Tribunal with a statement of facts and contentions which states that the reviewable decision is dated 17 January 2000. The HECS debt is $710.00 and Mr Cutajar told the Tribunal that he has paid that amount.

2. In lodging his application for review, Mr Cutajar stated:

   I am very angry because I indicated that my occupation and career had changed.   This decision suggests to me that I have no right to change my mind about MY career and that I was still obligated to attend the course and more to the point, pay the relevant fees.   I think this is undemocratic!  

3. The background to the matter is set out in a statement made on behalf of the decision-maker pursuant to section 37 of the AAT Act. Mr Cutajar enrolled in the subject MLC101 for Semester 1, 1999 at the University towards the end of 1998. The census date was 31 March 1999. The relevant legislation is provided under the Higher Education Funding Act 1988 ("the Act"). An issue arises before the Tribunal under section 106L, which provides, so far as relevant:

   106L(1)    The Secretary may, in writing, remit the whole or part of a person's HEC semester debt if:

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

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

   (c)the person applies in writing to the Secretary for remission of the debt within 12 months after the person's withdrawal day in relation to a unit in the person's course of study for the semester (see subsection (3B)).

   . . .

   (3)          For the purposes of this section, special circumstances, in relation to a person, include circumstances that the Secretary is satisfied:

   (a)are beyond the person's control; and

   (b)do not make their full impact on the person until on or after the census date for the course of study for the semester or the study period (as the case requires); and

   (c)make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs, or the units of study for which he or she was enrolled for the study period (as the case requires).

4. Mr Cutajar represented himself at the hearing and the Secretary was represented by Mr R. Frazzetto, in-house counsel, Australian Government Solicitor's office.   Mr Cutajar told the Tribunal that he is a security officer with Crown Casino and that he has applied to join the Victoria Police.   He initially enrolled to study at the University towards the end of 1997 as a "back up" in case he was not accepted into the Victoria Police, having initially made inquiries with that force in March 1998 and again in August 1998 when he also applied to join the Australian Federal Police.   He anticipated being successful in his application to join the Australian Federal Police and by January 1999 he decided any study at the University would not be relevant to his future.   He received Deakin University Student Handbook 1999 ("the handbook") and he was aware of the census date and what it meant.   Relevant extracts from the handbook were before the Tribunal.  

5. Mr Cutajar gave evidence that he telephoned the "Enrolment Department" at the University from his home in Keilor in late March 1999.   He spoke to a female officer who indicated that it was chaotic at her end of the line as the University's computer was down.   He told her that he wanted to discontinue his course and to withdraw.   He thought a telephone call was necessary because it would be too late by then for any paperwork to reach the University by the census date.   He was told that a form would be sent to him which he would need to complete.   He never received any form.  

6. Mr Cutajar said that he spoke to his accountant towards the end of the financial year ending 30 June 1999.   He was still getting mail from the University, including course material.   Mr Cutajar said that it was clear to him that his message about his withdrawal from his course had not been received because of the further course material he received.   There were "quite a few mail outs", including offers of help from a counsellor towards the end of the semester.   He was advised by the University he had failed although in his own mind he was not pursuing any study.   He had spoken to Ms C. Harrip, co-ordinator, Enrolments, Records and Fees, at the University in late May.   She had advised him that he would need to put his withdrawal from his course in writing but, as it was his opinion that the University had failed him, he did not do so, leaving it to the University.   He considers that he was misled by a university officer.

7. Mr Cutajar told the Tribunal that at the relevant time he was focussing on his desire to become a policeman.   He had an interview with the Australian Federal Police in April but he was advised on 3 May 1999 that no offer to join that Force would be made.   He suffered a breakdown in a personal relationship in 1997 and that continued to affect him for some time.   On 15 September 1999 Mr Cutajar wrote to Ms B. Tee, manager of Enrolments, Records and Fees at the University, referring to her letter dated 10 September 1999 in which she noted Mr Cutajar's "HECS Up-front" debt.   On the copy of Mr Cutajar's letter dated 15 September 1999 which was before the Tribunal is a note apparently made by a member of staff at the University after Mr Cutajar had telephoned.    It records:

   ·spoke with a female in Geelong (early April) about withdrawing from the course.  They sent the form to him, his accountant still has it.   He thought he was withdrawn (never filled in any paperwork to withdraw) due to the phone conversation.

Mr Cutajar noted in his letter of 15 September that he had telephoned requesting "termination several months ago".

1. Ms Harrip wrote to Mr Cutajar on 27 September 1999 advising, amongst other things:

   . . .
   Thank you for your correspondence regarding the current termination of your course and your previous contact with the University in relation to discontinuing your course as from April 1999.
   In light of the confusion surrounding your attempt at discontinuation I will arrange for your course to be discontinued as at 15 April 1999.
   Please note however that as this effective date of discontinuation is after the University's census date (ie. 31 March 1999) you will remain liable for both your General Service Fee (ie. $59.50) and HECS.
   . . .   

In applying for remission of his HECS debt in special circumstances on 15 January 2000, Mr Cutajar recorded that the date of his withdrawal was 15 April 1999 but he noted:

DATE stipulated by Deakin.   However as I discussed with their staff, I believe the date to have been earlier!

1. Ms Harrip gave oral evidence to the Tribunal by telephone.   She told the Tribunal that she had recorded a discontinuation date of 15 April 1999 for Mr Cutajar as there was a record that Mr Cutajar had advised that he had contacted the University in April.   No academic failure would therefore be recorded against him.   Ms Harrip conceded that the University's computer may sometimes be "down".   She said that the University has two call centres.   Temporary staff are not used to take telephone calls.   Data entry and telephone calls are the responsibility of permanent staff.   Requests to vary enrolments, including withdrawals, must be made in writing.   This is spelt out in the handbook.  

2. The first issue in this application is whether Mr Cutajar withdrew from his course by the census date 31 March 1999.   That is a question of fact.   The Tribunal is satisfied on the balance of probabilities that he did not.   In applying to the Tribunal for review of the decision that his HECS debt should not be remitted, Mr Cutajar did not point to having made a telephone call advising of his withdrawal before 31 March.   In applying for remission of the debt on 15 January 2000 Mr Cutajar did not state that his telephone call was made prior to 31 March and the evidence suggests that, if he telephoned the University, it was in early April 1999 [exh 2].   The Tribunal finds that Mr Cutajar did not withdraw from his course before the census date.

3. Turning to section 106L of the Act and special circumstances, the Tribunal is satisfied that, although Mr Cutajar was unsettled at the relevant time as a result of the end of a personal relationship, which had occurred some time earlier, and uncertain as to whether he would succeed in being accepted by either the Australian Federal Police or the Victoria Police, those circumstances, although not within his control, remained constant both before and after the census date and are not such that it was beyond his control to advise the University in writing before the census date that he had decided to withdraw from his course. His evidence points to him as having made that decision in January. In reply to Mr Frazzetto's submission Mr Cutajar also referred to training he undertook for his employer at the relevant time and his need to work as he had a home loan to pay off. Those factors also did not impact on him only after the census date. In Secretary, Department Education, Training and Youth Affairs v Ellem (2000) 173 ALR 300 Lindgren J said, at paragraph 38:

   A person may choose not to complete a course on account of circumstances as multifarious as human experience allows.   Examples are:  sudden and unforeseeable family or economic exigencies; a change in professional qualification requirements; a change in the teaching staff of the institution of higher education; a developing appreciation by the person that the course is not well adapted to his or her needs or desires; a developing appreciation by the person that he or she is not well equipped to undertake the course.   In some circumstances the voluntary element will be so dominant that it could not reasonably be suggested that special circumstances apply to the person, as where the person simply decides, as a matter of "preference", not to complete the course. In other cases, the pressure of external circumstances on the person may be almost irresistible, such as circumstances associated with a death or terminal illness in the person's family.   The point is that there is a continuum on which sets of circumstances can be placed according to the degree to which circumstances within the person's own control, or external circumstances beyond his or her control, are properly to be seen as causative of his or her non-completion of the course requirements, and it is a misconception to think that "special circumstances" cannot apply to the person whenever it can be said that an element of his or her decision-making is involved.

4. In this application the voluntary element dominates and the Tribunal will not exercise its discretion to remit any part of Mr Cutajar's HECS debt and the decision under review will be affirmed.   Of course, there is no bar in the legislation to a change of career for a student or any obligation for a student to attend a course, but the legislation does provide that fees must be paid unless a student has withdrawn by the census date if the HECS debt is not remitted in special circumstances.

   I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mrs H.E. Hallowes, Senior Member
   (sgd)   Catherine Thomas
             Personal Assistant

   Date of Hearing:  29.06.00
   Date of Decision:  08.11.00
   Solicitor for the Applicant:           IN PERSON
   Counsel for the Respondent:       Mr R. Frazzetto, in-house counsel
   Solicitor for the Respondent:       Australian Government Solicitor