CVSH and Secretary, Department of Education

[2018] AATA 4447

CVSH and Secretary, Department of Education [2018] AATA 4447 (28 November 2018)

Division:GENERAL DIVISION

File Number:2017/7008           

Re:CVSH  

APPLICANT

AndSecretary, Department of Education

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans

Date:28 November 2018

Place:Perth

The Reviewable Decision is affirmed.

................[sgd]........................................................

Senior Member Dr M Evans

CATCHWORDS

HIGHER EDUCATION – FEE-HELP assistance – application for remission of FEE-HELP debt – whether special circumstances existed – whether circumstances that did not make their full impact until on or after the census date – reviewable decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 29(2)(a), s 29(7), s 35(3)

Higher Education Support Act 2003

(Cth) – s 101.1, s 104.1, s 104.25(1), s 107.1,
s 110.1, s 104.25, s 104.30, s 104.30(2), s 104.35, s 169.25(1), s 169(2), s 206.1 item 2,
s 209.1(1)(b), s 209.1(2), s 209.10(1), s 209.10(4), s 238.10(1) item 1

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Faulkner and Comcare [2007] AATA 1541
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569

SECONDARY MATERIALS

Administration Guidelines 2012 (Cth)

Australian Government, Fee-help Information for 2016

REASONS FOR DECISION

Senior Member Dr M Evans

28 November 2018

RELEVANT FACTS

1. The Applicant is seeking the re-credit of his FEE-HELP balance for the following units of study (the units) that he enrolled in as part of the Master of Business Administration (MBA) course at Edith Cowan University (the University) for semester 2, 2016:  

   (a)MBA6020 – Personal and Professional Development; and

   (b)MBA6030 – Information, Contemporary Technologies and Decision Making.   

2. The University’s electronic records show that on 3 February 2016, the Applicant completed an electronic FEE-HELP form to defer his tuition fees (T7, page 43), and was enrolled in the units on 4 February 2016 (T6, page 42).

3. On 26 March 2016, the Applicant requested to withdraw from the semester one, 2016 unit, FBL5010 – Managing People and Organisations. In an email to the University he stated that the request to withdraw was “Due to personal reasons and work commitments”, and that “I will resume my studies next semester where I can give it my full attention” (T10, page 56). In an email dated 29 March 2016 the University advised the Applicant that his request was approved and that his withdrawal had been processed without financial penalty (T10, page 55).

4. On 28 June 2016, the Applicant’s two minor sons were admitted to hospital for surgery (Exhibit A4).  This is discussed in detail below in paragraphs [39] – [43].

5. Semester 2 commenced on 1 July 2016 (T3, page 34).

6. The grandfather of the Applicant’s wife, passed away in South Africa on 8 July 2016 (T11, page 61).

7. The census date for semester 2, 2016 was 31 August 2016 (T3, page 34). The Applicant did not withdraw from the units before the census date.

8. On 26 September 2016, the University issued a “Commonwealth Assistance Notice” to the Applicant which recorded a FEE-HELP debt of $5,900 for the units (T8, page 44).

9. Semester 2 ended on 31 December 2016 (T3, page 34). The Applicant received a “0 Fail” result for both of the units (T16, page 91, T17).

10. On 29 November 2016, the Course Advice section of the University emailed the Applicant attaching a letter regarding a new J52 Master of Business Administration course from semester 1, 2017 (T1, page 15). The next email in this email exchange is an email from the Applicant dated 17 February 2017 (T1, page 15) which stated:

    In semester one I have sent an email asking that I be taken out of this course completely. My father-in-law was suffering from cancer and I also had work complications.

    I was not aware that the units for semester 2 have not been cancelled. Please can you re look (sic) at my academic status and reverse the fees and the at risk statement. I kindly ask that you understand my situation and also understand that when I asked for my course enrollment (sic) to be cancelled that I assumed both semesters would be cancelled.

11. On 20 February 2017, the University sent an email to the Applicant containing a web page link to information and the relevant form and stating that he had to complete the relevant form in order to withdraw without financial penalty (T1, page 14). 

12. On 23 July 2017, the Applicant emailed the University (T1, page 9). This email stated:

    I hope you can help me. My wife is a current student with ECU and she helped me to enrol when I first decided to study in 2016. I was unaware that she enrolled me for both semesters. When I was struggling to cope with the building of our new home, work commitments and the birth of our surprise baby, I decided to cancel uni and carry on next semester.

    Before the second semester started my wife’s grandfather passed away. She was very close to him and took this rather badly. Then to top it off her father was diagnosed with cancer and been told (sic) that chemotherapy was not going to work. We are not in a financial situation to have gone to South Africa to see her dad, so she was emotionally very upset. With all this happening, she completely forgot to tell me that she enrolled for both semesters. I have of course decided to help her through this difficult time and did not think to even check any uni stuff as I decided to start fresh in 2017.

    You can see that if you go into those units I have never even made any attempt to open anything up, there will be no discussion threads.

    I have attached the death certificate of her grandfather and is (sic) still waiting for a letter from her dad’s oncologist stating that her dad was a patient of his. The doctor however is rather reluctant to send a letter, but we will keep trying.

    I am asking if you could please reverse the financial penalty for those units…

    You can see that I have re enrolled (sic) this year and passed all my units. I will never deliberately not do any units. We are in a difficult financial situation where my wife are (sic) not earning an income due to our third baby which was not planned. I had to take a massive pay-cut due to the company I am working for is (sic) also suffering with the economy (sic) times. Please consider my appeal and reverse the financial penalty…

13. In an email dated 26 July 2017 (T1, page 8), the University advised the Applicant that he would need to complete an online application for “Withdrawal Without Penalty” on the basis of “special circumstances”, and submit supporting documentation (T1, page 8).

14. The Applicant completed the relevant form, titled “Withdraw without penalty”, in which he applied to withdraw from the units without financial penalty. This form was electronically submitted to the University on 26 July 2017 (T1, page 5; T11, page 59).

15. On approximately 1 August 2017, the University made the decision to decline the Applicant’s application for withdrawal from the units without financial penalty (T12, page 67), and advised the Applicant in an email dated 3 August 2017 (T1, page 7).

16. In an electronic form submitted on 9 August 2017 (T13, page 75), the Applicant requested the reconsideration of this decision. Only part of the screen shot of the “Reason For Request” appears in the T-documents:

    I think it is pretty poor on ECU’s behalf to decline the fee reversal due to the fact that death in my immediate family as well as my father-in -law being diagnosed with cancer in (sic) not a valid enough excuse to stop studying the semester.

    It is extremely hard for us to be in a country with no family. Then to have this news and not having the finances to go to South-Africa (sic) to visit my father-in-law was an extremely touch (sic) time for our family. Emotionally I was not able to continue…

17. It appears that the University contacted the Applicant by email on 30 August 2017 to request additional information, however only one line of this request appears in the screen shot in the T-documents (T15, page 82). The Applicant responded by email on 31 August 2017, and stated (T15, page 82):

    Thank you for your response. As said in the first appeal that my wife’s father was diagnosed with cancer at about the same time. It was then found after 31^st August that the chemotherapy is not working and that they will stop treatment. As I said, this was a very difficult time for my family and I felt I had to stand by her. My studies unfortunately took a back seat and I sincerely apologise for not contacting ECU straight away.

    My wife has asked her father’s Oncologist to provide a letter stating this, but he is hesitant to do so (also said in original appeal).

    I can however ask her father to write a letter stating that this is in fact true, if this will help the case. Please can you let me know ASAP if this can help my case, otherwise I am out of options.

18. On approximately 20 September 2017, after reviewing the decision, the University determined that “the outcome remains declined” (T15, page 83-84). That is, the University affirmed the decision. This will be referred to in these reasons for decision as the Reviewable Decision. The “Reason for decline” for both units was stated as follows:

    We appreciate that this may be a difficult time for you. However your application has not demonstrated that your circumstances made their full impact after the applicable penalty date and affected you to an extent that it was impracticable to meet the unit requirements.

19. The Applicant contacted the University by email on 2 October 2017 (T1, page 12) and stated that:

    I received your email that my appeal has been declined. However we are in a financial situation where we cannot afford to pay the $6000 we owe for the studies that I did not do. I have received a massive decrease in salary and my hours have also been reduced (More than $300/week. Is there anyway (sic) that we can have the penalty reduced or perhaps (since, despite everything) I am still studying. My wife is on maternity leave at the moment from which she does not get an income.

    Please can you find it in your heart to understand our situation and be able to help. I really did not neglect my studies. I am a husband and a father of 3 young children and I take my studies seriously, but if I have to pay this $6000 for the semester I did not study, it will break us financially and I might not be able to resume my studies. That would be such a shame as I thoroughly enjoy my studies and love studying with ECU...

20. The University responded to the Applicant in an email dated 3 October 2017 (T1, page 11) and advised the Applicant that if he was dissatisfied with the outcome of the review, that he could appeal to the Administrative Appeals Tribunal (the Tribunal) within 28 days of receiving notice of the decision.

21. On 25 November 2017 the Applicant made an application to the Tribunal to review the Reviewable Decision of the University made on approximately 20 September 2017 (T15, page 83-84).

22. On 30 November 2017 the Applicant sent an email to the University (T1, page 17) which stated as follows:

    I have also just realised that semester two has a prerequisite in semester one. That means that I should not have been allowed to do semester 2 without finishing semester 1. Yet again, the University (ECU) did not contact me to say anything, even though I have cancelled semester 1 altogether.

    The university has my mobile number, my work number as well as personal email, yet when they realised that no study attempt has been made by myself, no one even tried to contact me to ask what is going on or if I am in some sort of trouble.

    I would have then realised that ECU have not cancelled the second semester and I could have intervened in the situation right there and then.

23. On 14 December 2017, the Tribunal made an order to extend the time for the Applicant to make an application to the Tribunal under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) because the Applicant had not made an application within 28 days, as required by s 29(2)(a) of the AAT Act.

    ISSUE

24. The issue for determination by the Tribunal is whether,

    in respect of the units, the Applicant’s circumstances were “special circumstances”, pursuant to s 104-25(1)(c) and

    
    

    s 104-30 of the Higher Education Support Act 2003 (Cth) (the Act). If so, the Applicant’s FEE-HELP debt will be re-credited.  

    JURISDICTION

25. A decision by a higher education provider regarding a “Refusal to re-credit a person’s FEE-HELP balance” under s 104.25(1) of the Act is a “reviewable decision” (s 206.1, item 2).

26. Subsection 209.10(1) provides that “[a] person whose interests are affected by a
    * reviewable decision may request the * reviewer to reconsider the decision”.

27. The reviewer can be a delegate of the decision-maker provided that the delegate who reconsiders the decision was not involved in making the decision and occupies a position senior to that occupied by any person involved in making the decision (s 209.1(1)(b) and (2) of the Act).

28. The reviewer must reconsider the decision and may confirm, vary, or set aside the decision and substitute a new decision under s 209.10(4) of the Act.

29. Section 212.1 provides that “[a]n application may be made to the Administrative Appeals Tribunal for the review of a * reviewable decision that has been confirmed, varied or set aside under section 209-5 or 209-10.”

30. The Tribunal has jurisdiction to review the Reviewable Decision because there was an original reviewable decision under s 104.25(1) on approximately 1 August 2017 (T12, page 67), a request for reconsideration of the decision by the Applicant on 9 August 2017 (T13, page 75), and an affirmation of the decision by the University after a reconsideration on approximately 20 September 2017 (T15, page 83-84).

    MATERIAL BEFORE THE TRIBUNAL

31. The hearing was heard in part on 29 August 2018, but was adjourned until 15 October 2018 to allow the Applicant to obtain further medical evidence regarding his sons’ operations and recovery.

32. The Applicant appeared in person, and was self-represented. He was accompanied by his wife as his support person. The Respondent was represented by Mr Lex Holcombe of HWL Ebsworth Lawyers, who appeared by telephone.

33. Both the Applicant and his wife made submissions and gave evidence at the Tribunal hearing, and the Applicant was cross-examined.

34. On 29 August 2018, the Tribunal admitted the following material into evidence:

    (a)an email from the Applicant, dated 6 April 2018, with three attachments comprising:

    (i)a one page submission which commences as being from the Applicant’s wife, but is signed off by both the Applicant and his wife as a joint submission; and

    (ii)two “Certificates of Bravery” from the Joondalup Health Campus for each of the Applicant’s  sons (Exhibit A1);

    (b)Section 37 documents (T-documents), numbered T1 to T19 (page 1-153) (Exhibit R1); and

    (c)Statement of Facts, Issues and Contentions of the Respondent, dated 11 May 2018 (Exhibit R2).

35. At the resumed hearing on 15 October 2018, the Tribunal admitted the following additional documents into evidence:

    (a)a letter from Dr Japinder Khosa, Paediatric Surgeon and Urologist (Dr Khosa), with the heading “Carer’s Certificate”, dated 19 September 2018 (Exhibit A2);

    (b)a letter from Dr Khosa, dated 1 October 2018 (Exhibit A3); and

    (c)two single page “Patient Activity” forms (one for each of the Applicant’s sons) from Joondalup Health Campus, dated 19 September 2018 showing that the Applicant’s sons were admitted and discharged on 28 June 2016 (Exhibit A4).

36. The Tribunal has considered all of the material before it, as well as the written and oral submissions of the parties, and the evidence of the Applicant and his wife. The Tribunal is satisfied that the parties have had an adequate opportunity to be heard by the Tribunal.

37. Subsequent to the hearing, the Tribunal made a confidentiality order under s 35(3) of the AAT Act, and accordingly, the Applicant was given the pseudonym, CVSH. This was because of the confidential medical information relating to the Applicant’s two minor children, as set out in the following section.

    APPLICANT’S SUBMISSIONS AND FURTHER EVIDENCE

38. The following excerpt from Exhibit A1 summarises the Applicant’s main submissions with respect to special circumstances:

    I, [the Applicant’s wife] have helped [the Applicant] enrol for his MBA. As a habit I have enrolled him for both semesters at the beginning of the year.

    As semester started, we were in the completing stages of building our house and also had a newborn (which was a bit of a surprise to us as financially, we could only afford two kids). So now we have a busy house hold (sic) with three little ones. Due to work commitments [the Applicant] had to start working away from home and hence decided that he will not be able to give his full attention to his studies.

    He then emailed to cancel his semester.

    After that we had a bit of a negative spiral:

    ·     My dad’s cancer treatment was not working, and a decision was made to stop chemo therapy (sic) and let him live what he has left of his life without being constantly sick

    ·     My grandfather passed away

    ·     We were told that both my sons, the (then) 3-year-old and our new born (sic) baby will have to go for major surgery for the exact same condition.

    ·     [the Applicant’s] company lost their major contract with [name omitted]  and they had to let about 80% of their staff go. [The Applicant] himself had to take a $400/week salary pay cut. This, even now, makes mortgage payments of our newly built house very difficult.

    With all this drama happening in a space of 3 months (June – August), I needed emotional support. I am currently on medication for depression and it is helping. But to get me through this tough time of basically losing my dad and my grandfather and the operations on my boys, [the Applicant] needed to stop his studies to help me get through this difficult time. My older son’s initial surgery did not go well and where the operation was, ruptured. Thus, he needed a second, more invasive operation.

    For this reason, he needed to stop his study after the consensus (sic) date. He has now resumed his study and is doing really well, receiving distinctions for his units.

    You can understand from looking at our financial situation… that we are clearly struggling…

39. At the hearing the Applicant and his wife gave evidence that when their sons were nine months old and two and a half years old respectively, they underwent a major operation to their urethras called a “hypospadias repair”. This was the first operation for the younger child. It was the second operation for the older child who had previously had the operation, but required a correction which was called a “division of skin bridge” (see Exhibit A3). Although the older child only needed a correction, he developed a complication after the surgery, and as a result, required almost as much post-operative care as the younger child.

40. The operation on both children was a day procedure which took place on 28 June 2016 (Exhibit A4), with the operation lasting for approximately three hours for each child. The Applicant and his wife gave evidence that although they were permitted to take the children home that day because it was easier to care for them at home, the children required significant post-operative care.

41. More specifically, the Applicant and his wife gave evidence that both children had cups covering their penises to prevent infection and catheters. The children needed to have saline baths two to three times per day to prevent infection, including during the night. The older child recovered well, and after three to four weeks, ceased saline bathing. However, the younger child required more extensive post-operative care with double nappies, and saline baths for approximately two and a half months after the operation. It was important that the children’s nappies were changed immediately after being soiled to prevent infection. The Applicant’s wife stated at the hearing that the children’s catheters were removed approximately six weeks after the operation, and there were no complications after the catheters were removed.  

1. The Applicant and his wife gave evidence that this process of post-operative care for the two children continued for approximately three months (see also Exhibit A3). A letter from Dr Khosa (Exhibit A3) also confirms this evidence:

   The two…boys were born with hypospadias for which [the older child] had his hypospadias repair performed when he was 9 months of age and then subsequently did develop a minor complication for which he just needed a division of skin bridge in 2016.

   At the same time I also performed a hypospadias repair on his younger brother [name omitted].

   Hypospadias is a major condition requiring a major procedure and the baby had double nappies and a great deal of effort for nappy changes for one week post operatively. Also the penis does swell up after the operation and it does require a bit of care over the next 3 months time.

2. The children’s surgeon, Dr Khosa, certified the Applicant as requiring carer’s leave from 28 June 2016 to 14 August 2016 (Exhibit A2).

   RELEVANT LEGISLATION AND PRINCIPLES

   The Act

3. Subsection 101.1 of the Act explains FEE-HELP assistance as follows:

   A student may be entitled to FEE-HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met.

   The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a higher education provider or, if the student accesses units through Open Universities Australia, that body, to discharge the student’s liability to pay his or her tuition fees.

4. A student’s entitlement to FEE–HELP assistance is set out in s 104.1 of the Act. If a student is entitled to FEE-HELP assistance, the amount of FEE-HELP that they are entitled to is provided for in s 107.1 of the Act as follows:

   The amount of * FEE-HELP assistance to which a student is entitled for a unit of study is the difference between:

   (a)the student’s * tuition fee for the unit; and

   (b)the sum of any * up-front payments made in relation to the unit.

   …

5. Subsection 110.1 of the Act, in summary, provides that the amount of FEE-HELP is lent to the student by the Commonwealth who will pay the amount directly to the higher education provider. The section provides:

   (1)If a student is entitled to an amount of * FEE-HELP assistance for a unit of study with a higher education provider, and access to the unit was not provided by * Open Universities Australia, the Commonwealth must:

   (a)as a benefit to the student, lend to the student the amount of FEE-HELP assistance; and

   (b)pay the amount lent to the provider in discharge of the student’s liability to pay his or her * tuition fee for the unit.

   …

6. Subsection 104.25 of the Act allows a student to apply to the higher education provider for the re-crediting of the student’s FEE-HELP debt in respect of a unit of study. The subsection provides as follows:

   (1)A higher education provider must, on the * Secretary’s behalf, re-credit a person’s * FEE-HELP balance with an amount equal to the amounts of * FEE-HELP assistance that the person received for a unit of study if:

   (a)the person has been enrolled in the unit with the provider; and

   (aa)access to the unit was not provided by * Open Universities Australia; and

   (b)the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake the unit; and

   (c)the provider is satisfied that special circumstances apply to the person (see section 104-30); and

   (d)the person applies in writing to the provider for re-crediting of the FEE-HELP balance; and

   (e)either:

   (i)     the application is made before the end of the application period under section 104-35; or

   (ii)    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.

   (Emphasis added.)

7. “Special circumstances” are defined in s 104.30 of the Act as follows:

   (1)For the purposes of paragraphs 104-1A(2)(b) and 104-25(1)(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.

   …

8. The Tribunal agrees with the submission of the Respondent in Exhibit R2, para [28], that the reference to “if and only if” in s 104.30(1) of the Act indicates that “there must be a close causal link between the special circumstances that are contended and the person’s inability to withdraw before the census date”. These words, together with the word “must”, indicate a limited discretion on the part of the decision-maker (that is, the Tribunal) who is required to be satisfied of all three criteria.

9. Under s 169.25(1) and (2) of the Act, the higher education provider must determine and publish a census date for each unit of study. The subsection provides as follows:

   (1)A higher education provider must, for each unit of study it provides or proposes to provide during a period ascertained in accordance with the Administration Guidelines, determine, for that period:

   (a)a particular date to be the * census date for the unit; and

   (b)the * EFTSL value for the unit.

   Note:         If a higher education provider provides the same unit over different periods, the unit is taken to be a different unit of study in respect of each period. Therefore the provider will have to determine a separate census date, and a separate EFTSL value, in respect of each period.

   (2)A date determined under paragraph (1)(a) must be determined in accordance with the Administration Guidelines.

   (3)The provider must publish:

   (a)the *census date for the unit by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines; and

   (b)the *EFTSL value for the unit by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines.

10. Subsection 104.35 of the Act defines the application period in which a student can apply for the remission of their FEE-HELP debt in respect of a unit of study. The section provides: 

    (1)If:

    (a)the person applying under 104-25(1)(d) for the re-crediting of the person’s *FEE-HELP balance in relation to a unit of study has withdrawn his or her enrolment in the unit; 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.

11. Subsection 104.40 of the Act sets out how the higher education provider must consider the application for remission. It provides:

    (1)If:

    (a)the application is made under paragraph 104-25(1)(d) before the end of the relevant application period; or

    (b)the higher education 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;

    the provider must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision on the application.

    …

    (2)The notice must include a statement of the reasons for the decision.

    Administration Guidelines

12. Subsection 104.30(2) of the Act (as qualified by the note immediately below it, and reproduced above) requires a decision of a higher education provider to be made in accordance with the Administration Guidelines 2012 (Cth) (the Administration Guidelines). Consequently, the Tribunal, whose role is to stand in the shoes of the original decision-maker (see Senior Member Hunt in Faulkner and Comcare [2007] AATA 1541 at [27]) and determine whether the decision was the correct or preferable one on the material before the Tribunal (see Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419), must make its decision in accordance with the Administration Guidelines.

13. Subsection 238.10(1) of the Act provides that “[t]he Minister may, by legislative instrument, make Guidelines…” These guidelines include the Administration Guidelines

    
    

    (s 238.10 of the Act, item 1).

14. Chapter 3 of the Administration Guidelines is titled, “Special circumstances”. The relevant provisions are as follows:   

    3.1 PURPOSE

    3.1.1 The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:

    (a) are beyond the person’s control (paragraph 36-21(1)(a) of the Act);

    (b) do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 36-21(1)(b) of the Act); and

    (c) 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 (paragraph 36-21(1)(c) of the Act).

    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.

    3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE

    3.10.1 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.

    3.15 CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS

    3.15.1 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 occur:

    (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; or

    (b) family/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; or

    (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.

    A person is unable to complete the requirements for a unit if the person is unable to:

    (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 because of their inability to meet (a), (b) and (c) above.

    CONSIDERATION

15. As noted above, the Tribunal, standing in the shoes of the original decision-maker, must be satisfied that special circumstances apply to the Applicant (s 104.25(1)(c) of the Act). Specifically, the Tribunal must be satisfied that there were circumstances beyond the Applicant’s control, which did not make their full impact on him until on or after the census date for the units, and which made it impracticable for the Applicant to complete the requirements for the units in the period in which the Applicant was to undertake the units (semester 2, 2016).

    Were there circumstances beyond the Applicant’s control?

16. As noted above, circumstances beyond a person’s control are defined in s 3.5 of the Administration Guidelines. They include a situation “… 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” (s 3.5.1 of the Administration Guidelines). Additionally, the situation “… must be unusual, uncommon or abnormal” (s 3.5.5 of the Administration Guidelines).

17. A number of unfortunate events occurred in 2016 that were beyond the Applicant’s control, including his wife’s grandfather passing away and the news of the cancer diagnosis of his wife’s father and the subsequent cessation of treatment. There were also other stressful events, including: the building of a new home; work commitments; financial pressure associated with the Applicant’s work; and the birth of an unplanned baby which placed further financial pressure on their family. This collection of circumstances, whilst undoubtedly stressful for the Applicant and his wife, could not, in the Tribunal’s opinion, be considered to be “unusual, uncommon or abnormal” as these types of events are ordinary and regular life occurrences.

18. Additionally, a reasonable person would likely form the view that the Applicant’s failure to withdraw from the units was not beyond his control because it was, in part, due to his own inaction: the Applicant left it to his wife to complete his enrolment for him, resulting in a misunderstanding about the units he was enrolled in. 

19. The exception is the major surgery of the Applicant’s sons and the recovery and substantial post-operative care, which, in the Tribunal’s opinion, would constitute circumstances that were beyond the Applicant’s control and which were “unusual, uncommon or abnormal”.

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

20. As noted above, s 3.10.1(b) of the Administration Guidelines sets out circumstances that did not make their full impact until on or after the census date. According to s 3.10.1 of the Administration Guidelines, “special circumstances” include: circumstances that occurred before the census date, but worsen after that day; circumstances that occurred before the census date, but the full effect or magnitude does not become apparent until on or after that day; or circumstances that occur on or after the census date.

21. In the Tribunal’s opinion, the circumstances of the Applicant do not conform to any of these scenarios. This is because the unfortunate events experienced by the Applicant had largely resolved prior to the census date on 31 August 2016, and therefore did not worsen, become apparent, or occur after the census date. For example, the grandfather of the Applicant’s wife, passed away in South Africa on 8 July 2016, some weeks before the census date of 31 August 2016. Also, as indicated by the Applicant in his email of 23 July 2017 (T1, page 9), before the start of semester 2 the Applicant and his wife learned that her father had cancer and had been told that chemotherapy was not going to work. The timing of these events was confirmed in the statement from the Applicant’s wife (Exhibit A1). In summary, in this statement she said that: being told that her father’s cancer treatment was not working and that he had decided to stop chemotherapy; her grandfather passing away; being told that her two minor sons would have to have a major operation; and the Applicant taking a significant salary reduction, placing them under substantial financial pressure with a newly built house, occurred “in a space of 3 months (June – August)”. That is, these events occurred leading up to the census date of 31 August 2016.

22. Further, as outlined above, the Applicant’s two minor sons each had a major operation on 28 June 2016 which required significant post-operative care. According to Dr Khosa, “a great deal of effort” was required “for one week post operatively”, and that a “bit of care” was required over the next three months. Additionally, a carer’s certificate from Dr Khosa (Exhibit A2) stated that the Applicant required carer’s leave from 28 June 2016 to 14 August 2016, that is, until approximately two weeks prior to the census date. This evidence suggests that the full impact of the children’s operations occurred prior to the census date, and did not become apparent, worsen or occur after it.

23. The evidence of the Applicant and his wife at the hearing also confirms this conclusion. Their evidence suggests that the children required a high level of care for several weeks after their operation. They also gave evidence that the children’s catheters were removed approximately six weeks after the operation (being approximately two weeks prior to the census date) and that there were no complications after the catheters were removed (see paragraph [41] above). In summary, the evidence before the Tribunal suggests that the full impact of the children’s operation occurred prior to the census date in the weeks following the operation, and by approximately two weeks before the census date, the children were recovering well and the level of post-operative care they required was decreasing.

    Did the circumstances make it impracticable for the Applicant to complete the units?

24. The meaning of “impracticable” was discussed by Deputy President Forgie and Member Cameron in Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 (Zabaneh), at [45], as follows:

    As unfortunate as it is that Mr Zabaneh does not enjoy good health and that his parents have died, we are not satisfied that his circumstances were such that it was impracticable for him to complete the requirements of each unit within the relevant semester as required by s 104-30(c). “Impracticable” means “... not able to be done” [Chambers 21^st Century Dictionary, 1999, reprinted 2004, Chambers]. On the evidence, it might have been difficult for him to do so but the circumstances on which Mr Zabaneh relies were not such that completion of the requirements of the four units of study was not able to be done. (Footnote included within text.)

25. A similar conclusion could be drawn in the case of the Applicant. Whilst it may have been difficult for the Applicant to undertake and complete the units in semester 2, 2016 due to the stressful and unfortunate events that he and his wife were facing, including having a new baby and financial pressures, the Tribunal is not satisfied that it was impracticable for him to complete the requirements of the units in his circumstances.  

    CONCLUSION

1. There is no doubt that the Applicant and his wife had an eventful and emotionally difficult year in 2016. However, unfortunately for the Applicant, he does not meet the requirements of s 104-25(1)(c) and s 104-30 of the Act, and the relevant provisions of the Administration Guidelines.

2. Specifically, whilst the Tribunal accepts that his sons’ operations and the post-operative care of his sons was a circumstance beyond the Applicant’s control that was unusual, uncommon or abnormal, the full impact occurred and its full effect was felt before the census date. Finally, whilst it would have been difficult for the Applicant to complete the units, in the Tribunal’s opinion, it was not impracticable for him to do so.

3. Therefore, the Tribunal finds that the Applicant is not entitled to have his FEE-HELP balance re-credited.

   DECISION

4. For the reasons outlined above, the Tribunal affirms the Reviewable Decision.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

....[sgd]....................................................................

Associate

Dated: 28 November 2018

Date(s) of hearing:	29 August 2018 and 15 October 2018
Applicant:	In person
Counsel for the Respondent:	Mr Lex Holcombe
Solicitors for the Respondent:	HWL Ebsworth Lawyers