Secretary, Department of Education, Training & Youth Affairs v
Ellem [2000] FCA 695
ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal (“AAT”) – AAT set aside decision of Secretary refusing to remit HEC semester debt incurred by respondent under s 106J of Higher Education Funding Act 1988 (Cth) – s 106L providing for Secretary to remit debt where “special circumstances” apply to person – whether circumstances under person’s “control”
WORDS AND PHRASES – “special circumstances” – “control”
SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS v JUSTIN ANTHONY ELLEM
N 164 of 2000
LINDGREN J 26 MAY 2000 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 164 OF 2000
BETWEEN:
SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS Applicant
AND:
JUSTIN ANTHONY ELLEM Respondent
JUDGE:
LINDGREN J
DATE OF ORDER:
26 MAY 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 164 OF 2000
BETWEEN:
SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS Applicant
AND:
JUSTIN ANTHONY ELLEM Respondent
JUDGE:
LINDGREN J
DATE:
26 MAY 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
The Appellant (“the Secretary” – an expression which I will use to include, unless a contrary intention appears, delegates of the Secretary) “appeals” under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the AAT”) given on 1 February, 2000. The decision was to set aside a decision of the Secretary dated 28 July, 1998 and to remit the matter to which the decision related to the Secretary with a direction favourable to the respondent (“Mr Ellem”).
Mr Ellem had incurred a debt to the Commonwealth, called an “HEC semester debt”, under s 106J of the Higher Education Funding Act 1988 (Cth) (“the Act”) in respect of money lent to him by the Commonwealth and used to discharge his liability under the Act to pay a contribution in respect of semester 1 of 1998 of a Bachelor of Science degree for which he was enrolled at The University of Newcastle. The amount of the debt was only $1,792, but I was informed from the Bar table that other cases awaiting resolution raise the same issue as this case does.
In circumstances outlined below Mr Ellem requested the Secretary to exercise his power under s 106L of the Act to remit the whole of the debt. The Secretary refused to do so. When the AAT remitted the matter to the Secretary, it did so with
“the Direction that there are special circumstances to remit the whole of the debt of [Mr Ellem], in the amount of $1,792, in respect of the Higher Education Contribution Scheme payment relating…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ellem [2000] FCA 695
Case
[2000] FCA 695
Decision Date
CaseChat Overview and Summary
The case of Ellem involved a dispute between Mr Ellem and the Secretary regarding the remission of a Higher Education Contribution Scheme (HECS) debt incurred by Mr Ellem for a semester of study at the University of Newcastle in 1998. Mr Ellem applied to the Secretary under section 106L of the Act to remit his HECS debt, which the Secretary refused. The Administrative Appeals Tribunal (AAT) remitted the matter back to the Secretary with a direction to remit the debt, finding that special circumstances existed. The Secretary then appealed to the court on the validity of the AAT's decision.
The primary legal issue was the proper construction of section 106L(3)(a) of the Act and the interplay between sections 106L(1)(a), 106L(3)(a), and 106L(3A). Specifically, the court had to determine whether Mr Ellem's circumstances met the criteria for special circumstances as outlined in the Act. The court also had to assess whether the Secretary's guidelines on the remission of debts were valid and whether they correctly interpreted the Act.
The court found that the AAT had correctly interpreted the Act and the guidelines. It held that Mr Ellem's circumstances were indeed special as they were beyond his control and did not make their full impact until after the census date, making it impracticable for him to complete the course requirements. The court emphasised that the decision hinged on Mr Ellem's unique situation and the specific circumstances he faced, which were not within his control. The court also noted that the AAT's decision did not create a broad precedent but was tailored to the specific facts of this case.
The appeal was dismissed, and the applicant was ordered to pay the respondent's costs. The court found no error in the AAT's decision and upheld its direction for the Secretary to remit Mr Ellem's HECS debt.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Background
Background to the litigation
In circumstances outlined below Mr Ellem requested the Secretary to exercise his power under s 106L of the Act to remit the whole of the debt. The Secretary refused to do so. When the AAT remitted the matter to the Secretary, it did so with “the Direction that there are special circumstances to remit the whole of the debt of [Mr Ellem], in the amount of $1,792, in respect of the Higher Education Contribution Scheme payment relating to his study at University of Newcastle in semester 1, 1998”.Background The Act establishes a scheme under which students engaged in courses of higher education are required to make a contribution to the fees payable for their course. A person may elect to defer paying the contribution and in that case the Commonwealth lends the amount to him or her by paying it to the institution of higher education in question. The person incurs an “HEC semester debt” to the Commonwealth equal to the amount of the loan (s 106J of the Act). The HEC semester debt is taken to have been incurred immediately after the “census date” in respect of the course studied in respect of the semester, whether or not the Commonwealth has paid the institution (s 106J(2)). At the heart of the present case is the Secretary’s power to remit an HEC semester debt under s 106L of the Act if “special circumstances” apply to the person. Subsections (1), (3) and (3A) of s 106L are as follows:“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)).(2)…………………………………………………………………………….(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).(3A)The Secretary may issue guidelines relating to circumstances in which the Secretary will be satisfied of a matter referred to in paragraph (3)(a), (b) or (c). A decision of the Secretary under subsection (1) … must be in accordance with any such guidelines.”Questions arise in the present case as to the proper construction of para (a) of subs 106L(3) and the relationship between para 106L(1)(a), para 106L(3)(a) and subs 106L(3A).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
LINDGREN J
The AAT conducted a hearing on 21 June 1999. At the time of the hearing Mr Ellem was undertaking a Bachelor of Forensic Investigation degree at the Canberra Institute of Technology which he told the AAT was a requirement for entry into the forensic services of three major Police Services in Australia, including the NSW Police Service. He also said that if he had rejected the offer made by Charles Sturt University in its letter of 23 April 1998, he would have had to repeat all the tests and processing associated with his application, which he described as “lengthy and arduous”. There was, moreover, no guarantee that he would be accepted at the time of any later application he might make.Reasons for decision of the AAT After noting the submissions of Mr Ellem and of the Secretary, the AAT gave the reasons for its decision in paragraphs [24]-[31]: 24. “The Applicant impressed the Tribunal as being very specifically focussed on his career in crime scene investigation, even to a point where, when he found out that forensic services were becoming “civilianised” he decided to change his course again in 1999 to enable his specific interests to be addressed directly. The Tribunal finds that, given the Applicant’s single-mindedness about his career interests, if he continued his Bachelor of Science course at the University of Newcastle merely for the purpose of not incurring a HECS debt, he would have taken a number of risks. Such action would have caused him to miss the 1998 intake for the NSW Police Service in May. Moreover, with a history of 250 offers out of 800 applications and in the absence of any policy which allowed successful applicants to defer the commencement of their course, he was taking a material risk of not achieving entry to the Constable Training Program in the future. There was no evidence before the Tribunal to indicate that the Applicant’s perceptions about entry to the Constable Training Program and crime scene investigation work was not correct, and therefore the Tribunal accepts the Applicant’s evidence on this.25. The Applicant was at risk of not fulfilling his career goal if he had decided to continue his course at University of Newcastle, instead of accepting the offer from Charles Sturt University. The Tribunal finds that this made it impracticable for the Applicant to complete the University of Newcastle course for semester 1 1998. The Applicant had no control over the delay in the commencement of the initial course at Charles Sturt University, nor did he have any control over the fact that the NSW Police Service was changing the nature of its constable education from an in-service course at the Police Academy. The Tribunal does not accept the suggestion that actions of the NSW Police Service are not material to this decision. Those actions obviously had a major personal impact on the Applicant and they are, in the words of s 106L(3) of the Act, circumstances in relation to the Applicant.26. This matter is significantly different from those cases where a student decides to make a course change, or to notify of the withdrawal of a subject, after the census date, notwithstanding their opportunity to do so before the census date. The vast majority of course changes can be negotiated and completed before the census date and within the requirements of the Act, and indeed that is a purpose of the census date. The Tribunal notes the unlikelihood of creating a precedent on the facts in this case. The facts are very unique, and at best would apply only to the Applicant and perhaps some of his fellow students in the course at Charles Sturt University in 1998.27. The Tribunal finds that the Applicant’s circumstances were beyond his control. Although it was in his control to make the decision he made, there were other circumstances involved which related to the late commencement of the Charles Sturt University course and the change in the NSW Police Service Constable Education Program which were not in the Applicant’s control and which contributed to the totality of the circumstances which caused him to make the decision to withdraw from his course after the census date. In applying the Secretary’s Guidelines (T15) the Tribunal finds that this is a situation which a reasonable person would consider to be not due to the Applicant’s action or inaction, either directly or indirectly, and for which he was not responsible. The Tribunal finds that the situation was unusual, uncommon and abnormal.28. The Tribunal also finds that the circumstances did not make their full impact on the Applicant until after the census date. He did not know until after the census date that the Constable Education Program was going to be available before 6 to 12 months. The Applicant received a letter from the NSW Police Service (T3, p19) indicating that further information will be available about March 1998. He then received a telephone call from the Police Service, informing him that it may be 6 or 12 months before the course would begin. Indeed, on his evidence, which the Tribunal accepts, the first information that the Applicant received was the offer of the place at Charles Sturt University dated 23 April 1998 (T3, p21). While he had hoped that an offer would be made for the Constable Education Program, the Tribunal finds that there is no reasonable action that he could have taken prior to the census date. The alternative not to pursue any course of study at the University of Newcastle while running the risk of never getting an offer from the NSW Police Service, is in the Tribunal’s view unreasonable.29. None of the previous Tribunal decisions to which the Respondent referred were similar fact situations, and were not helpful to the Tribunal in coming to a decision in this matter. This decision, as with so many of these “special circumstances” matters, turn on their own facts.30. For the reasons outlined above, the Tribunal finds that the Applicant has met the criteria outlined in (a), (b) and (c) of the Guidelines for the remission of his HECS debt for study commenced by him at the University of Newcastle in semester 1 1998. The Tribunal notes in the Secretary’s Guidelines that the Secretary (and the Tribunal standing in the shoes of the Secretary) can also be satisfied special circumstances exist although they are not dealt within the guidelines. The Tribunal finds that even if there were parts of the Guidelines that the Applicant did not meet, on consideration of the totality of the Applicant’s circumstances, the Applicant meets the terms of s 106L(3) of the Act in establishing that special circumstances exist. These circumstances warrant remitting the whole of his HECS debt in the amount of $1,792. The decision under review is therefore set aside.31. In making this decision, the Tribunal did not find it necessary to consider the issue of the co-existence of two HECS debts being payable by or on behalf of the Applicant for part of semester 1 1998, because of the Applicant changing his course.” Reasoning on the present appealFirst ground of appeal – invalidity of the Secretary’s Guidelines