Daniel Rix and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education
[2012] AATA 742
•26 October 2012
[2012] AATA 742
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5002
Re
Daniel Rix
APPLICANT
And
Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 26 October 2012 Place Sydney The decision under review is affirmed.
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Senior Member A K Britton
CATCHWORDS
HIGHER EDUCATION — Student assistance — Whether “special circumstances” apply — Whether Administration Guidelines 2012 constitute government policy for subjects with a pre-1 January 2012 census date
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 79-5(1), 104-25(1)(c), 104-30, Part 3-3, Part 4-1
Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (Cth) Schedule 2
Student Learning Entitlement (Repeal) Instrument 2011 (Cth)CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Knee and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 392
Re Palombo and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 564SECONDARY MATERIALS
Administration Guidelines 2012 (Cth) Chapter 3
Student Learning Entitlement Guidelines 2004 (Cth) Chapter 5
REASONS FOR DECISION
Senior Member A K Britton
In 2010 Mr Daniel Rix was enrolled at the University of Technology Sydney (the University) to study the subject, International Finance. He did not satisfy the course requirements and was awarded a fail grade. The University refused his application to re-credit the amount of FEE-HELP assistance he had received for that subject. He now seeks review of that decision by the Administrative Appeals Tribunal. To re-credit the amount of FEE-HELP assistance Mr Rix received, the Tribunal must be satisfied that “special circumstances apply to” Mr Rix (s 104-25(1)(c) of the Higher Education Support Act 2003 (Cth) (the Act)).
Unless otherwise stated all reference in these reasons to “the Act” are to the version of the Act that existed prior to its amendment by the Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (Cth) (the Amending Act).
The Act provides that a student may be entitled to FEE-HELP assistance for units of study for which they are not “Commonwealth supported” (Part 3-3 of the Act). Where an eligible student elects to receive FEE-HELP assistance their tuition fees are paid by the Commonwealth directly to the student’s higher education provider. As a consequence a debt is created, payable by the student to the Commonwealth. The debt is recoverable through the taxation system once the student completes their course of studies and their income reaches a prescribed level (see Part 4-1 of the Act). The amount of the debt is determined by, among other things, the number of units of study in which the student was enrolled and the tuition fees payable for each unit.
Where a student is enrolled in a unit of study at “census date” (a date determined by the relevant education provider, not less than 20 per cent of the way through the course) their “FEE-HELP balance” is increased by an amount allocated to that unit of study, irrespective of whether they successfully complete that unit. The relevant educational provider, or the AAT acting as substitute decision-maker, must re-credit the amount of FEE-HELP assistance the person received for that unit if, among other things, the decision-maker is satisfied “special circumstances apply to the person” (S 104-25(1)(c) of the Act).
Special circumstances are defined by s 104-30 of the Act to mean:
Special circumstances
(1) For the purposes of paragraph 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 Student Learning Entitlement Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 79-5(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Mr Rix contends that the combination of illness and the delay in granting his request to sit the final examination were circumstances beyond his control and meant that it was impracticable for him to complete the requirements of the subject, International Finance. “Special circumstances” will apply to Mr Rix, if these circumstances, separately or in combination:
(i) were beyond his control; and
(ii) did not make their full impact until on or after the census date (31 March 2010); and
(iii) made it impracticable for him to complete the subject International Finance.
Do special circumstances apply to Mr Rix?
Mr Rix contends that special circumstances are established. The Secretary disagrees. Further the Secretary contends that in deciding whether special circumstances exist Chapter 3 of the Administration Guidelines 2012 (the Administration Guidelines) must be applied. For present purposes I will assume but not decide that those Guidelines have no application.
To put the submissions made by the parties in context it is necessary to outline the background facts.
In 2010, the course requirements set by the University for the subject, International Finance, included passing the Final Exam, which was worth 60 per cent of the total mark. Mr Rix did not sit the final exam, which was scheduled for 15 June 2010.
The following day Mr Rix wrote to the University and advised that due to illness he was unable to sit the final exam and requested the opportunity to sit a special examination. In support of his request, Mr Rix submitted a medical certificate prepared by GP, Julia Ying, certifying that he was “suffering from a medical condition and was/will be unfit to resume work/study for a period of 1 day from 15 June 2010”. In an accompanying pro forma professional practitioner certificate, Dr Ying recorded that Mr Rix had been “slightly affected” for one day:
[reporting] upper respiratory infection symptoms – sore throat, stuffy head coughing not sleeping well
The University initially refused Mr Rix’s request however on 15 July 2010 after receiving further information, advised that his request had been granted and a special final exam had been scheduled for 29 July 2010. Mr Rix replied: “That’s great news, thanks. I will put the 29th in my diary”.
Mr Rix sat the exam and scored 21.5 out of a possible 60 marks. His total mark for the course was 38 out of 100 and he was awarded a fail grade.
The focus of the parties’ submissions in these proceedings was on whether the nature of Mr Rix’s illness meant that he was unable to sit the final exam. The Secretary argued that Mr Rix’s illness was not especially severe pointing to the evidence that he was “slightly affected” by illness. Mr Rix on the other hand contends that it was not open to the University to refuse to accept the uncontradicted medical opinion that he was unfit to take the exam. Furthermore he contends that he had been sick for some time before the examination pointing to the medical certificate issued by Dr Jeremy Choy, which indicated that he had been unwell at the end of May 2010.
Had Mr Rix not been given an opportunity to re-sit the final examination it would be necessary to decide whether his illness made it impracticable for him to fulfil the course requirements. However he was given that opportunity and therefore the extent to which he was disabled on account of illness at the time of the original exam is not relevant.
It is necessary therefore to identify the special circumstances that applied to Mr Rix after the University acceded to his request to be given the opportunity to resit the final exam. Having identified those circumstances, the question posed is whether those circumstances were beyond Mr Rix’s control and made it impracticable for him to complete the requirements of the course, that is, to achieve a pass mark in the final exam.
Mr Rix identifies the passage of time between the original and the rescheduled exam as the relevant circumstances that applied to him. He argues that those circumstances were both beyond his control and made it impractical for him to pass the final exam. He argues that the University acted unreasonably in taking four weeks to grant his request and then giving him only two weeks to prepare for the exam. He asserts that the subject matter of the course was extremely complex and involved multiple complex equations, which needed to be committed to memory for the final exam. He claims that by the time of the special exam it had become impracticable to memorise those equations.
The Oxford English Dictionary defines “impracticable” to mean “Not practicable; that cannot be carried out, effected, accomplished, or done; practically impossible” and practicable to mean “Able to be done or put into practice successfully; feasible; able to be used; useful, practical, effective” (Oxford University Press 2nd ed, 1989). The Macquarie Dictionary offers similar definitions for impracticable: “Not practicable; that cannot be put into practice with the available means” and for practicable: “Capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible.” (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009).
While I accept that the timing of the examination was beyond Mr Rix’s control, in my opinion it could not reasonably be argued that it made it impracticable to complete the course requirements. The contention that the delay meant that it was impracticable to recall the content of the course and the formulae covered is unsupported and implausible. Mr Rix was given two weeks to prepare for the exam. At best the delay meant that he was placed at a disadvantage as compared to other students.
There is no evidence and nor is it suggested that Mr Rix was in poor health on either the day of the rescheduled exam or in the intervening period after being notified that his request for the exam to be rescheduled had been granted.
Not being satisfied that the circumstances of Mr Rix’s illness or the delay in the final exam make it impracticable for him to complete the requirements for the unit, I am not satisfied that special circumstances apply.
Do the Administration Guidelines apply?
As noted the Secretary contends that in determining whether special circumstances are established, the Administration Guidelines must be applied.
Where, as in this case, the relevant unit of study for which a claim of special circumstances has been made has a pre-1 January 2012 census date, the version of the Act that existed prior to its amendment continues to apply (item 38, Schedule 2, Part 2 of the Amending Act). The “old” version of s 104-30(2) is set out in [5] above.
Prior to the amendment of the Act, any decision as to whether the elements of special circumstances had been established for the purpose of s 104-30 of the Act, was required to be made in accordance the Student Learning Entitlement Guidelines (SLE Guidelines), a legislative instrument gazetted in July 2004. Those Guidelines were repealed in association with various amendments made by the Amending Act (see the Student Learning Entitlement (Repeal) Instrument 2011 (Cth) (Repeal Instrument)).
Neither the Amending Act nor the Repeal Instrument expressly preserved the continued application of the SLE Guidelines to units of study to which the ‘old Act’ continues to apply. While the Administration Guidelines replaced the SLE Guidelines they apply to matters to which the amended provisions of the Act apply, namely units of study with a post-1 January 2012 census date.
There is no argument that neither the SLE Guidelines nor the Administration Guidelines apply to units of study with a pre-1 January 2012 census date. The Secretary however submits that consistent with the approach taken by the Tribunal (differently constituted) in Re Knee and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 392 and Re Palombo and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 564, in deciding whether special circumstances apply, the relevant provisions of the Administration Guidelines should be applied as they reflect current government policy. As the Secretary points out, the relevant provisions of the Administration Guidelines — Chapter 3: Special Circumstances — largely reflects the corresponding provisions of the SLE Guidelines — Chapter 5: Special Circumstances.
In the exercise of its review function the Tribunal must take into account any relevant statement of governmental policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The difficulty presented by the Secretary’s argument is not whether there is a cogent reason to depart from the Administration Guidelines but whether, as asserted, they constitute departmental policy for subjects with a pre-1 January 2012 census date. It may be, as the Secretary asserts, that the reason the Administration Guidelines were not expressed to apply to this class of subjects was a legislative oversight. Whatever the explanation, there must nonetheless be some evidence that they are an expression of government policy. While in reaching the correct or preferable decision the Tribunal must have regard to a broad range of government policy and this may take any number of forms, including practice manuals, guidelines, notes for general guidance or internal memos, nonetheless there must be cogent evidence that the purported policy has been adopted and that fact is known to relevant decision-makers. In this matter the only support the Secretary’s legal representative could point to for the proposition that the Administration Guidelines represented government policy for subjects with a pre-1 January 2012 census date, was that the Secretary had instructed that they applied in Mr Rix’s case. Absent some evidence that the Administration Guidelines were stated or understood to have universal application, I am not satisfied that they constitute policy.
Would special circumstances apply to Mr Rix under the Administration Guidelines?
In case I am wrong I will consider whether special circumstances would apply to Mr Rix if the Administration Guidelines were a statement of government policy.
Paragraph 3.15 of the Administration Guidelines contains a non-exhaustive list of circumstances which make it impracticable for the person to complete the unit of study and includes:
(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 courses.
The Administration Guidelines go on to state that a person will be unable to complete the requirements for a unit of study if they are 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.
For the reasons given at [18] – [19] above, Mr Rix is not assisted by this provision. Even if accepted that he was unable to sit the original exam on account of illness, he was not prevented from sitting the rescheduled final exam for that reason.
None of the other listed examples of circumstances that make it impracticable for a person to complete the unit apply to Mr Rix. That is not fatal to his claim, as the circumstances listed by the Administration Guidelines are not expressed to be exhaustive. However for the reason given at [18] of the Reasons I could not be satisfied that the example of special circumstances he relied upon — his alleged difficulties in recalling course content on account of the delay in scheduling the final exam — could be said to constitute special circumstances.
Decision
Not being satisfied that special circumstances apply to Mr Rix, the correct and preferable decision is to refuse his application to re-credit the amount of FEE-HELP assistance he received for the unit of study, International Finance.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
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Associate to Senior Member A K Britton
Dated 26 October 2012
Date(s) of hearing 15 October 2012 Advocate for the Respondent Shane Maundrell, Department of Industry, Innovation, Science, Research and Tertiary Education
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