Dafalla and Secretary, Department of Education, Skills and Employment

[2021] AATA 3703

Dafalla and Secretary, Department of Education, Skills and Employment [2021] AATA 3703 (15 October 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4974

Re:Sarra Dafalla

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:15 October 2021

Place:Sydney

I affirm the decision under review.

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

EDUCATION, SKILLS AND TRAINING – higher education funding – whether the applicant’s HECS-HELP debt may be remitted – whether the applicant faced ‘special circumstances’ – relevant statutory provisions and policies considered – applicant’s circumstances considered – relevant cases considered – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)

CASES

Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Montenegro v Secretary, Department of Education [2020] FCAFC 210
Ullah and Secretary, Department of Education and Training [2018] AATA 2159

SECONDARY MATERIALS

Administration Guidelines 2012 (Cth)

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

15 October 2021

INTRODUCTION

1. In 2020, the applicant enrolled in two units of study as part of the Bachelor of Education (Primary) degree at the Australian Catholic University (‘the Institution’). She incurred student contribution fees of $1,190.00 for the unit NMBR140 Intro Math Thinking, and $835.00 for ENGL140 Children's Literature.[1] The fees were provided under the HECS-HELP scheme established by the Higher Education Support Act 2003 (Cth) (‘the Act’).

   [1] T8/105. She also incurred a Student Services and Amenities Fee of $115.00.

2. The applicant did not complete her two units. She did not withdraw until after the census date, namely, 31 March 2020 for semester 1.

3. On 1 June 2020, the applicant applied for re-credit and remission of her fees, and her application was declined by the institution on 22 June 2020. She applied for formal review under the student appeal policy.[2] On 22 July 2020, the Institution affirmed the original decision.[3]

   [2] T17/159 - 162.

   [3] T19/178.

4. On 18 August 2020, the applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of 22 July (‘the reviewable decision’).[4]

   [4] T1/1-18

   THE TRIBUNAL HEARING

5. The application was heard on 29 July 2021 by videoconference. The applicant was self-represented. The Respondent was represented by Ms Kate Ervin.

6. The Respondent provided the documents mandated by section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) together with supplementary material relating to the effect of the impact of COVID-19 on the institution.[5]

   [5] T2/19-25.

7. The applicant filed additional medical certificates.

   RELEVANT STATUTORY PROVISIONS

8. In some circumstances the student contribution debt may be remitted.[6] The Respondent accepts that the Applicant meets all criteria for remission of the fees except the requirement that ‘special circumstances apply to the person’.

   [6] Relevantly, section 137-5 of the Act, within Part 4-1, provides that a HECS-HELP debt is incurred if the Commonwealth makes a loan to a person and uses the loan to make a payment in discharge of the person's liability to pay his or her student contribution amount for a unit of study (subsection 137-5(1)). The HECS-HELP debt is taken to have been incurred by a person immediately after the census date for the unit (subsection 137-5(3)). However, a person's HECS-HELP debt in relation to a unit of study is taken to be remitted if, relevantly, section 36-20 applies to the person.

9. Subsection 36-21(1) of the Act relevantly provides that special circumstances apply to a person:

   … if and only if the higher education provider 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; 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.

10. Subsection 36-21(2) provides that

    The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.

11. Chapter 3 of the Administration Guidelines 2012 (Cth) (‘Administration Guidelines’) specifies the circumstances in which a higher education provider will be satisfied that special circumstances apply to a person. It states:

    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 that a reasonable person would consider is not due to the person's action or inaction, either direct or indirect, and for which the person is not responsible.

    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 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 did not become apparent until 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.

    FACTS

12. At the end of May 2020, the applicant completed an APPLICATION TO WITHDRAW WITHOUT ACADEMIC PENALTY Form, in which she stated (reproduced as written):

    This semester I was haven [sic] difficully [sic] time in my life I also hand it my document certification to have an extension [sic] for my asstessment [sic] task. I also failue [sic] both my assessment task which I can not [sic] cointinue [sic] to do my final exam. I was stress so much this semester which cause me not to focuse [sic] in my assessment task and I failue [sic]. [7]

    [7] T13/148.

13. She attached a medical certificate from Dr Malek for the period 28 March 2020 to 1 April 2020.[8] She also completed a Student Declaration, in which she stated (reproduced as written):

    This semester I was struggle so much because I was haven [sic] family promblem [sic] and I have promblems [sic] with my life which make me stress and cause me not to focuse [sic] well in my assessment task. Also the COVID-19 to study oniline [sic] was really hard for me to understanding well and for the few first week to study online I was have no internet at home which make hard for me to understanding. I also have attatch my documentation medical certificate that I was sick and unwell this semester. [9]

    [8] T13/150; T1`8/172.

    [9] T15/155.

14. I note that the application for withdrawal without academic penalty is signed 31 May 2020. It appears to have been submitted with the Form for Re-credit of Unit/s and Refund of Fees in Circumstances request, which is dated 1 June 2020.[10] She also attached a medical certificate by Dr Islam for the period 17-20 March,[11] and by Dr Sellathurai for 6 May 2020.[12]

    [10] T15/153; provided for under subparagraph 36-20(1)(e)(ii) of the Act.

    [11] T15/156.

    [12] T15/157.

15. An internal file note dated 5 June 2020 records.[13]

    ·     Student states she had family problems, difficulty studying online (no internet for first few weeks) and was unwell – caused her stress and could not focus on assessments

    ·     Medical certificate covering the period 17/03/20 – 20/03/20

    ·     Medical certificate stating she was treated for conjunctivitis on 6/05/20

    ·     No evidence to demonstrate that she experienced ongoing, significant difficulty studying online

    ·     Medical issues occurred prior to census, no explanation of impact on studies and does not demonstrate it was impracticable to complete the requirements of the units

    ·     DECLINE – Rebecca 5/06/20

    [13] T15/154.

16. On 22 June 2020, her application was declined by the institution:

    You state that you were unable to focus on your studies due to a medical condition, however the medical certificates you have provided only notes the dates of your condition occurring between 17-20 March and on 6 May. There is no explanation of the impact your circumsatnces [sic] had on your studies, no evidence that your condition worsened after the census date and your application does not demonstrate that it was impracticable to complete the requirements of the units. Therefore, your application does not meet the second or third criteria above.

    You have not sufficiently addressed how you experienced ongoing, significant difficulty studying online and what attempts were made to overcome these challenges. Therefore, you have not demonstrated how it was impracticable for you to complete the requirements of your Semester 1 2020 units and your application does not meet the third criteria above. [14]

    [14] T16/158.

17. On 25 June 2020, the applicant completed the Application for FORMAL REVIEW under the Student Appeals Policy Form.[15] The Form states that a review of a mark, grade or policy can only be considered on certain specified grounds, including factors such as a calculation error, non-compliance with various policies, and lack of appropriate consideration for an application for extension, deferred exam or special consideration, and so on. Somewhat optimistically, (and quite without justification)[16] she ticked every box. She stated:

    This semester I have been sick that I can not [sic] do my assessment task for my two units of NMBR 140 - Intro Math Thinking and Engl 140 - Children’s Literature. However at the end of the semester I decide to withdrawn from my two units because I failure both of my unit my last results of my assessment make me to not continue this semeterenter [sic] I have also attach all my medical certificate. (Reproduced as written)

    [15] T17/159 - 161.

    [16] There was, for example, no evidence or suggestion of calculation error.

18. She provided the following medical certificates:

    ·Dr Islam dated 16 March 2020 for the period 16 - 17 March 2020 (previously provided).

    ·Dr Islam dated 18 March 2020 for the period 17 – 20 March 2020.

    ·Dr Awal for the period 23 – 24 March 2020.[17]

    ·Dr Malek dated 30 March 2020 for the period 28 March 2020 - 1 April 2020 (previously provided).[18]

    ·Dr Sellathurai dated 6 May 2020 for that day.[19]

    [17] T18/169.

    [18] T13/150.

    [19] T15/157.

19. I note that prior to the hearing before the Tribunal the applicant provided the following certificates:

    ·On 28 July 2021, Dr Sellathurai provided a medical certificate stating that the applicant was seen on 6 May 2020 and was unable to complete her assignments for 2 days because of conjunctivitis. (His previous certificate referred only to 6 May).

    ·On 28 July 2021, Dr Islam provided a certificate stating that she was unable to attend the University for study from 16 March 2020 to 20 March 2020 (consolidating his previous certificates dated 16 and 18 March 2020).

    CONSIDERATION

    (a) Medical issues

20. The applicant told the Tribunal that she suffered ill-health around the census date. She provided medical evidence that she was sick for some period both before and after the census date, eight days before and four days afterwards. The critical period around the Census Date is covered by medical certificates as follows (sick dates in italics):

M	T	W	T	F	S	S
16	17	18	19	20	21	22
23	24	25	26	27	28	29
30	[31] CD	1	2	3	4	5

1. In all, her certificates cover 12 days of ill-heath around the census date, one of those days being after the census date. She told the Tribunal that she was having stomach aches on each of those 12 days. She also provided a medical certificate for a different illness (conjunctivitis) for 6 - 7 May 2020.

2. She said that the level of pain fluctuated before and after the census date. It was worse before the census date and then it got better but then it got worse. She said that she was having stomach pain and fighting with her sister a lot. She went to a doctor and he gave her tablets for the stomach pain but it did not help due to the family problems. She said that when she had stomach pain she had to stay in bed. She said that it affected her performance and her result was so bad she decided to withdraw. She said that when she finished her first assessment task and got a fail result she then decided to withdraw.

3. I note that the three requirements outlined above in the Administration Guidelines are necessary and sufficient conditions, and that these ‘guidelines’ form part of the legislative scheme that is binding upon the Tribunal.[20] They are not merely relevant considerations but tests to be applied in their own right.

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

4. The evidence does not establish that the applicant’s sickness did not make its full impact on her until on or after the census date. She said that her condition got worse after the census date, but this is not supported by the medical evidence. In fact the evidence suggests that the major brunt of her illness (stomach pains, vomiting) occurred before the census date. The census date for semester 1 was 31 March. Although a certificate covers 1 April, there is no certificate covering any period between 2 April and 6 May, when she had a bout of conjunctivitis which incapacitated her for two days.

5. I am not satisfied that her medical condition worsened after the census date, or that the full effect or magnitude of her illness did not become apparent until after the census date. There is no evidence that her medical circumstances changed to such an extent that she was unable to continue studying.

6. I am satisfied that neither of the relevant circumstances referred to in Rule 3.10 apply. I am satisfied that her illness occurred before the census date, but I am not satisfied that it worsened after that date, or that the full effect or magnitude did not become apparent until after that date.

7. The policy implicit within Rule 3.10 is that the burden of risk in relation to predicting the likely course of a student’s health rests with the student, not with the institution. If a student experiencing some medical condition decides, before the census date, to ‘solider on’, they are not entitled to a fee remission, unless their condition worsened after the census date, or the full effect or magnitude did not become apparent until after the census date.

8. I agree with the primary decision-maker that the medical evidence does not satisfy the requirements of the Administration Guidelines.

   (b) Family problems

9. The applicant told the Tribunal that during the course of the first semester she and her sister were sharing an apartment. Her sister was involved in a dispute with her husband. The situation got worse as the year progressed. At first her sister kept things to herself, but then she started shouting and screaming when she got angry. She said that it was difficult to concentrate because her sister was so loud, angry and upset and was often yelling. It would happen every two days or so from the start of the semester. She had to get out of the house. She said it was often only for a short time each day but that it got in her head. Unfortunately, she was not able to be specific about dates. She said that her sister’s behaviour was very disruptive to her studies.

10. There is nothing in her oral evidence to indicate that she was threatened by the sister or that she was the target of her behaviour. It was more a case of being caught up on the periphery of her sister’s distress and emotional anger.

11. She said this happened throughout semester 1, 2020. She could not remember the exact timeframe but it definitely interrupted her studies. It went on until June.

12. Although she said that it continued until June it is unclear as to whether its full impact was felt only after the census date.

13. In all, she was run down and demoralised by her sister’s outbursts, but a degree of resilience may be expected under such circumstances. I note that Rule 3.15.1 refers to ‘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’.  I do not think that the applicant’s circumstances are of a similar order. Although this must have been a very difficult situation for the applicant, I am not satisfied that these circumstances made it impracticable for her to complete the requirements of the Units.

    (c) Internet access

14. The applicant told the Tribunal that she had no internet at home and trouble with the technician. She had to use 3G connected to laptop. She did not experience similar problems in 2019 because she was attending the university and working in class.

15. She said that she was able to hot-spot from her phone but that it was very expensive. Her sister said she could not fix the internet, and she had to pay for her mobile phone in order to provide a hotspot. She said it was hard to connect her phone to the internet. She said she didn’t have unlimited internet, and she needed the internet for research on-line.

16. I find that her limited access to the internet made it difficult but not impracticable to access the library to obtain on-line resources. Nor was it suggested that this situation worsened after the census date, or first occurred after the census date.

    (d) The impact of COVID-19.

17. After hearing from the applicant, I asked the Respondent to provide additional information relating to the impact of COVID upon the services provided by the University, and specifically, whether the university library was available to students throughout this period. According to the information sourced by the Respondent the library did not close.

18. I note the COVID-19 update sent by the institution to staff and students on 25 March 2020, stating that classes would run online from 30 March 2020; and that campuses, including libraries and computer labs, would remain open and could be used for online education.[21] The institution sent a further update on 27 March 2020 confirming that classes would run online from 30 March 2020 and drawing students' attention to the upcoming census date.[22] Another update was sent on 30 March 2020, confirming that online teaching had commenced, and stating that ACU campuses, including libraries, remained open.[23]

    [21] ST3, 6.

    [22] ST4/9-11.

    [23] ST5/12-13.

1. Therefore, the applicant had access to the University library throughout the relevant period. It may be that because of the distractions of her health and the situation with her sister the applicant was unaware of these directives from the institution. I am also aware that the advent of COVID-19 was itself a major distraction, being the first pandemic of its kind experienced in Australia for a century. But despite these considerations, I am not able to make a finding that it was impracticable for her to continue with her studies due to the impact of the pandemic.

2. There is simply no evidence that her medical condition or domestic circumstances deteriorated after the census date. They appeared to have been present throughout and if anything improved as the semester wore on. I accept that there was a coincidence of time before the census date and the first governmental restrictions arising from COVID in March 2020, but the impact on her was minimal.

3. The Respondent referred the Tribunal to Ullah and Secretary, Department of Education and Training [2018] AATA 2159, where the Tribunal considered whether an applicant's circumstances, namely the ill-health of his wife and newborn daughter, and the need to return to a remote part of Pakistan to obtain family support and assistance for his wife and daughter, constituted special circumstances. On the question whether these circumstances made it impracticable for the Applicant to complete his study requirements, the Tribunal stated, at [36]:

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

4. I was also referred to Georgiou and Secretary, Department of Education and Training [2019] AATA 170, where the Tribunal concluded, at [20]:

   I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. However, while the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of the Units, it is insufficient to establish that the circumstances were such that it was impracticable for this to be done.

5. I consider that her circumstances were not as difficult as those described in these cases, where the Tribunal found that it was not impracticable to complete the course requirements.

   CONCLUSION

6. The first onset of symptoms occurred on 16 March, two weeks before the census date.  The applicant had ample notice of the census date. She had ample opportunity to withdraw without penalty. She made a decision to continue with her studies. She told the Tribunal that it was her poor performance in the relevant units that made her decide to withdraw. She was really disappointed with her first result so she decided to withdraw because the mark was not very good. Her decision was made after the census date. Her circumstances do not satisfy the requirements for fee remission.

   DECISION

7. Under the circumstances, I affirm the decision under review.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 15 October 2021

Date(s) of hearing:	29 July 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms K Ervin, Clayton Utz