Ellem
[2000] FCA 695
•26 MAY 2000
FEDERAL COURT OF AUSTRALIA
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”
Higher Education Funding Act 1988 (Cth) s 106L
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
ApplicantAND:
JUSTIN ANTHONY ELLEM
RespondentJUDGE:
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
ApplicantAND:
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 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).
In November 1997 Mr Ellem applied to enter the New South Wales Police Service. At that time and at all relevant later times it was his wish to pursue a career in forensic services. In addition to filling in application forms, he was required to undergo fitness and medical examinations and a Job Related Aptitude Test. There was, however, a problem. It was described in the following terms in a letter dated 7 January 1998 from the NSW Police Service Workforce and Career Directorate to Mr Ellem:
“Thank you for your application for employment with the NSW Police Service.
While we appreciate the interest you have expressed, we are not in a position to take any immediate action on your application. However, we will hold your application pending finalisation of the new Constables’ Education Program. This program will replace the Police Recruit Education Program and may be accompanied by changes to entry standards and/or assessment methods.
Further information will be available around March 1998. In the meantime, your particulars have been placed on our data base for an automatic mail-out of literature as it becomes available.” (emphasis in original)
At the time of Mr Ellem’s application, study for the Police Academy was undertaken at the Police Academy at Goulburn – an internal facility of the NSW Police Service. On 12 January 1998 an officer of that Police Service contacted Mr Ellem and informed him that the system of recruitment was being changed to a system under which the required study would be undertaken in conjunction with Charles Sturt University. The officer told Mr Ellem that it would be 6-12 months before the new system commenced.
By late January 1998 Mr Ellem received his Higher School Certificate results. Rather than wait until what appeared to be July 1998 at the earliest for what was only the possibility of an opportunity to undertake his chosen career, Mr Ellem accepted an offer to study for a Bachelor of Science degree at The University of Newcastle. He thought that this course would assist him in entering some area of forensic services later. Accordingly, in early February 1998 he enrolled at The University of Newcastle for that course, the instruction in which was due to begin in early March 1998. Mr Ellem elected to defer payment of his HECS contribution. The “census date” for semester 1 was 31 March 1998.
Apparently, in early April 1998, Mr Ellem received from the NSW Police Service forms which he completed and returned in connection with his joining the Police Service.
On 22 April 1998, The University of Newcastle notified Mr Ellem that the amount of his HECS liability was $1,792.
On 23 April 1998, Charles Sturt University wrote a letter to Mr Ellem offering him admission to the internal Diploma of Policing Practice course due to commence at that University’s Goulburn campus on 18 May 1998. The letter advised that the last date for acceptance of the offer was 6 May 1998. On 27 April 1998, Mr Ellem signed and returned an acceptance form.
On 29 April 1998, Mr Ellem wrote to the Secretary asking that his HEC semester debt be reduced or remitted. Briefly, he relied on the circumstances that he had enrolled at The University of Newcastle only because he had been told that the recruitment system of the NSW Police Service was under review and he had not heard further from that Service. His letter stated:
“At the beginning of April, 1998, I received application forms etc for the revised Police Service recruitment. I lodged these application forms and was accepted so I am in debt with a full semester of HECS fees after studying for only seven weeks of the course at the University of Newcastle.”
On the same day, 29 April 1998, Mr Ellem withdrew from the subjects for which he was enrolled at The University of Newcastle.
On 13 May 1998, the Secretary wrote to Mr Ellem referring to his letter of 29 April and advising that the information he had supplied did not provide enough detail to enable an informed decision to be made. The letter enclosed a form of “application for remission of HECS Debt in Special Circumstances” for completion and return.
On 18 May, Mr Ellem began his new course at Charles Sturt University’s Goulburn campus. The course was a trimester one and he commenced at the start of trimester 2, enrolling for trimesters 2 (18 May 1998 to 21 August 1998) and 3 (7 September 1998 to 11 December 1998). He was required to pay a HECS contribution in respect of that course and he elected to defer payment. Charles Sturt University advised that in respect of that course students were required to pay the HECS payment and “upon complete payment of the HECS Liability Debt a full reimbursement of HECS expenses [would] be paid to students by the NSW Police Service”.
By a form dated 23 May 1998 completed by Mr Ellem and received by the Department on 28 May 1998, Mr Ellem again applied for remission of his HEC semester debt. On 17 June 1998 the Department of Employment, Education, Training and Youth Affairs (“the Department”) advised him that the Secretary had decided not to remit the debt, giving reasons for that decision.
On 6 July 1998, Mr Ellem requested an internal review of the decision and on 28 July the Department advised that a different delegate of the Secretary had reviewed his case and decided not to remit the debt, giving reasons for that “reconsideration decision”.
By letter dated 21 August 1998 (and received by the AAT on 26 August) Mr Ellem applied to the AAT for review of the reconsideration decision.
Mr Ellem later supplied to the AAT a letter dated 14 December 1998 from the NSW Police Service Workforce and Career Directorate which stated as follows:
“In 1997, the NSW Police Service began reviewing the process for the recruitment of Police Officers in the NSW Police Service.
Upon receiving your application for recruitment into the NSW Police Service in January 1998, you were notified by recruitment personnel that you would be notified of the decision of your application in around twelve months time.
This time delay was due to the new Constables’ Education Program and associated standards still being subject to review, and therefore the recruitment of Police Officers into the NSW Police Service would be delayed for one year, until after the Constables’ Education Program and associated standards had been finalised.
Due to the finalisation of most of the standards for the Constables’ Education Program with Charles Sturt University in March 1998, you were sent application forms, information, and medical/fitness forms that had to be returned to Charles Sturt University and the NSW Police Service respectively, as soon as possible.
Applications were examined and a process of elimination occurred. Only 250 applicants were offered places at the NSW Police Academy.”
This letter and certain other documents that Mr Ellem provided to the AAT had not been provided to the Secretary. Upon all the further documents being provided to the Secretary, the Secretary reviewed the reconsideration decision but decided again not to remit Mr Ellem’s HEC semester debt. On 18 February 1999, the Secretary advised him of this decision, stating that the documentation demonstrated that Mr Ellem’s circumstances changed after the census date and that it was because of this change that he discontinued his studies at The University of Newcastle, but that the documentation did not demonstrate that his decision to accept an offer into the “Constables Education Program” was beyond his control.
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 appeal
First ground of appeal – invalidity of the Secretary’s Guidelines
Subsection (3A) of s 106L of the Act was set out earlier. It empowered the Secretary to issue guidelines. I was informed by Counsel for the Secretary, without objection by Counsel for Mr Ellem, that it has become apparent since the AAT’s decision that the guidelines to which the AAT referred in its Reason for Decision (“the Guidelines”) were not valid at the time of its decision on 1 February 2000. Counsel informed me that the Guidelines were approved on 2 November 1999, gazetted on 15 December 1999 and tabled in Parliament on 15 February 2000. Section 110 of the Act provided that guidelines issued under subs 106L(3A) were a disallowable instrument under s 46A of the Acts Interpretation Act 1901 (Cth). Accordingly, they were not valid at the time of the AAT’s decision: see ss 46A(1) and 48(1)(a) of that Act and Watson v Lee (1979) 144 CLR 374.
What effect does the invalidity of the Guidelines have on the AAT’s decision? The Reasons for Decision refer to the Guidelines in three places. First, the AAT set out the relevant part of the Guidelines in para [10] of its Reasons as follows:
“Under subsection 106L(3A) of the Act the Secretary may issue guidelines outlining in what circumstances the Secretary will be satisfied that the matters in (a), (b) or (c) above are met. These guidelines are set out below. The Secretary can also be satisfied that special circumstances exist although they are not dealt within the guidelines.
GUIDELINES
Each application will be examined and determined on its merits. The Secretary will consider the person’s claims together with independent documentary evidence which substantiates these claims. The Secretary may be satisfied that a person’s circumstances:
(a)are beyond a 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. This situation must be unusual, uncommon or abnormal. A lack of knowledge or understanding of HECS….Is not considered to be beyond a person’s control.
(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) if the person’s circumstances occur:
(i)before the census date, but worsen after that day, or
(ii) before the census date, but the full effect or magnitude does not become apparent until on or after that day, or
(ii)on or after the census date.
(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) if the person is unable to:
(i)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
(ii)complete the required assessable work, or
(iii)sit the required examinations, or
(iv)complete any other course requirements because of their inability to meet (i), (ii) or (iii).
Special circumstances might arise from medical, family, personal, employment or course related reasons. In considering a person’s application, the Secretary must be satisfied that the person has met the criteria outlined above in (a), (b) and (c).” (emphasis in original).
In the preceding paragraph (para [9]) the AAT had set out the relevant provisions of s 106L of the Act, including subs (3A). It is clear that the AAT thought that its decision was required by that subsection to be “in accordance with” the Guidelines. But this was not so because the Guidelines were not valid. I note, in passing, that no blame is attributed to the AAT for this error: indeed, Counsel for the Secretary has indicated that if his client succeeds on the appeal, he will not seek an order for costs.
The AAT referred to the Guidelines in paras [27] and [30] of its Reasons for Decision. Those two paragraphs were set out earlier. The AAT there found that the Guidelines were satisfied, but that if parts of them were not, nonetheless, on a consideration of “the totality” of Mr Ellem’s circumstances, Mr Ellem met the terms of subs 106L(3) because he had established that “special circumstances” existed in any event. The “special circumstances” referred to are also those referred to in para (b) of subs 106L(1).
The AAT erred in thinking that subs 106L(3) required its decision to be “in accordance with” the Guidelines, but what does this mean on the facts of the present case? The Guidelines are confused. In the first paragraph that occurs under the side heading “GUIDELINES”, the Guidelines state, in effect, only that the Secretary may be satisfied that the matters referred to in paras (a), (b) and (c) of subs 106L(3) exist if the criteria referred to in paras (a), (b) and (c) respectively of the Guidelines are met. But subs 106L(3A) empowers the Secretary to issue guidelines relating to circumstances in which the Secretary will be satisfied of a matter referred to in para (3)(a), (b) or (c). Clearly, the purpose of the subsection is to allow persons to be informed by the Secretary that if certain guidelines are met, there will be no further question but that the Secretary will be satisfied of the matters referred to in para (a), (b) and (c) of subs 106L(3), and therefore will be satisfied that special circumstances apply to the person. There would then remain only the residual discretion indicated by the word “may”, being the third word in subs 106L(1), whether to remit the whole or part of the person’s HEC Semester debt.
The second last sentence of the Guidelines states that the Secretary must be satisfied that the person meets the criteria set out in paras (a), (b) and (c) of the Guidelines. If this is a statement that those criteria must be met if the Secretary is to be satisfied that “special circumstances” exist, it is (a) wrong because inconsistent with the inclusory nature of subs 106L(3); and (b) inconsistent with the third sentence of the Guidelines document which reflects the inclusory nature of that subsection.
The AAT was satisfied that the criteria referred to in paras (a), (b) and (c) of the Guidelines were established but did not independently direct its mind to the question whether the meeting of those criteria without more satisfied it (the AAT) that the “special circumstances” referred to in para 106L(1)(b) and subs 106L(3) existed.
Not only were the Guidelines invalid because of the procedural deficiency mentioned earlier; they did not conform to subs 106L(3A) because they did not relate to circumstances in which the Secretary would be satisfied of a matter referred to in para (3)(a), (b) or (c). The third sentence under the side heading “GUIDELINES” said only “may be satisfied”. The last sentence of the Guidelines stated only a condition precedent. Guidelines conforming to subs 106L(3A) must assure the reader that in the circumstances described in them, the Secretary will be satisfied of the matters referred to in paras 106L(3)(a), (b) and (c). Guidelines conforming to subs 106L(3A) will benefit, rather than burden, a person applying for remission of a HEC semester debt. By the operation of subs 106L(3A) they will have the effect of imposing an obligation on the Secretary for the benefit of such a person.
If the AAT had done no more than proceed on the basis that “special circumstances” must be taken to be established because the criteria described in paras (a), (b) and (c) of the Guidelines were satisfied, it would have erred in law by having failed to decide for itself whether “special circumstances” existed. But the AAT did more, as para [30] of its Reasons (set out earlier) shows. It found that special circumstances existed, not only because the criteria referred to in paras (a), (b) and (c) of the Guidelines were met, but because of “the totality” of Mr Ellem’s circumstances.
I do not accept the Secretary’s submission that the AAT’s statement in this respect betrays a failure to state reasons. In paras [24] to [28] of its Reasons the AAT was careful to emphasise the circumstances of Mr Ellem’s case that were “special”. For example, in para [26], before dealing specifically with para (a)’s “beyond his control” issue in para [27], the AAT referred to circumstances that made Mr Ellem’s case “unique” and not a “precedent”.
Second ground of appeal – finding that Mr Ellem’s circumstances were beyond his control
The Secretary relies on the fact that Mr Ellem elected to change courses and submits that it is not enough that what prompted him to do so was a change of circumstances beyond his control. The Secretary relies on, and Mr Ellem seeks to distinguish, the following cases in which courts have considered similar or related concepts described in legislation: Atomic Skifabrik Alois Rohrmoser v Registrar of Trade Marks (1987) 13 FCR 199 (Jenkinson J) at 206; Secretary, DEETYA v Ferguson (1997) 76 FCR 426 (Mansfield J) at 437E-439G; Secretary DSS v Secara (1998) 89 FCR 151 (FC) at 159G-162B per Mansfield J; and The Turul [1919] AC 515. The Secretary submits that, in accordance with these authorities, “circumstances … beyond the person’s control” cannot refer to circumstances that the person can do something about, or voluntary acts of the person, and that for circumstances to be “beyond the person’s control” they must be in the nature of force majeure.
I have read all these cases but do not find them particularly helpful. The reason is the familiar one that the statutory language must be understood in the context of the purpose of the provision in which it occurs.
The expression “beyond the person’s control” occurs in subs 160L(3) which describes circumstances included within the notion of “special circumstances” referred to in para 160L(1)(b). But the circumstances described in subs 160L(3) do not exhaust the field covered by the “special circumstances” referred to in para 160L(1)(b). The special circumstances to which para 160L(1)(b) refers are circumstances additional to the conditions specified in paras 160L(1)(a) (non-completion of course requirements) and (c) (application for remission within 12 months) which take the case out of the “non-special” category in which the HEC semester debt cannot reasonably be expected to be remitted. Those special circumstances would definitely include, but are not limited to, circumstances that the Secretary is satisfied meet all three criteria described in paras (a), (b) and (c) of subs 106L(3). Accordingly, there may be circumstances which are not “beyond the person’s control” but which are nonetheless “special” for the purposes of para 106L(1)(b). The ultimate question is that posed by subs 106L(1) and, relevantly, para (b) of that subsection: is the Secretary (or the AAT) “satisfied that special circumstances applied to the person”.
In my opinion the AAT understood this to be the position and correctly directed its mind to this question in para [30] of its Reasons. The AAT was there saying, relevantly, that even if the circumstances were not “beyond [Mr Ellem’s] control”, nonetheless it was satisfied that “special circumstances” applied to Mr Ellem.
It is not possible to conceive of all the possible sets of circumstances that might be considered “special” for the purpose of para 160L(1)(b) and it would be unwise to attempt to define them or describe them in a limiting way. The legislature has recognised this fact by expressing subs 106L(3) in inclusory terms.
An element of choice by a person must surely be present in almost all cases where he or she has not completed course requirements. It seems that the only case where this would not be so is where the institution of higher education itself prematurely terminates the course.
A person may choose not to complete a course on account of circumstances as multifarious as human experience allows. Examples are: sudden and unforeseeable family or economic exigencies; a change in professional qualification requirements; a change in the teaching staff of the institution of higher education; a developing appreciation by the person that the course is not well adapted to his or her needs or desires; a developing appreciation by the person that he or she is not well equipped to undertake the course. In some circumstances the voluntary element will be so dominant that it could not reasonably be suggested that special circumstances apply to the person, as where the person simply decides, as a matter of “preference”, not to complete the course. In other cases, the pressure of external circumstances on the person may be almost irresistible, such as circumstances associated with a death or terminal illness in the person’s family. The point is that there is a continuum on which sets of circumstances can be placed according to the degree to which circumstances within the person’s own control, or external circumstances beyond his or her control, are properly to be seen as causative of his or her non-completion of the course requirements, and it is a misconception to think that “special circumstances” cannot apply to the person whenever it can be said that an element of his or her decision-making is involved.
In the present case, the AAT found that Mr Ellem’s mind was always fixed on a forensic career, indeed, one more specifically in crime scene investigation. Circumstances beyond Mr Ellem’s control prevented him from pursuing that career at his first attempt and he was “forced” to take an alternative course of action, at least for the time being. Shortly afterwards, institutional arrangements beyond Mr Ellem’s control made it possible for him to pursue his ever fixed objective. At a fundamental level, his decision was dictated, not by a mere change of mind on his part, but by the change in institutional arrangements. In my view, in these circumstances it was open to the AAT to conclude, as it did, that special circumstances applied to Mr Ellem.
It is not inconsistent with the view just expressed that in another case the person’s decision-making might be seen to be more in the nature of the pursuit of a preference leading the Secretary (or the AAT) to a different conclusion.
Third and fourth grounds of appeal – finding of special circumstances regardless of the Guidelines.
As noted earlier, the Secretary attacks the AAT’s finding that even if there were parts of the Guidelines that Mr Ellem did not meet, on consideration of the totality of his circumstances he met the terms of subs 106L(3) (and therefore para 106L(1)(b)) by establishing that special circumstances existed. The Secretary submits that in this respect the AAT failed to give adequate reasons as required by subs 43(2B) of the AAT Act and makes the point, by reference to authorities, that a such a failure is an error of law.
I touched on the present submission in para [31] earlier. The sentence of the AAT’s Reasons which is attacked is as follows:
“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.”
As noted in para [31] above, this sentence is a culmination of a process of identification of extraordinary features of Mr Ellem’s case in paras [24] to [28] which were set out in full earlier. In sum, in those paragraphs the AAT showed that Mr Ellem had always had the fixed objective of pursuing a career in forensic science, and, more particularly, in crime scene investigation, and that it had only been educational institutional arrangements that had diverted him temporarily to a Bachelor of Science degree at The University of Newcastle. The AAT thought, as it was entitled to do, that all the circumstances outlined in paras [24] to [28] were special circumstances that made it appropriate to remit Mr Ellem’s HEC semester debt.
Fifth ground of appeal – “Wednesbury unreasonableness”
In his written submissions, Counsel for the Secretary submits as follows:
“Finally, the Tribunal’s decision is so unreasonable that no reasonable decision maker could have come to it. It allows a waiver of the entirety of a semester debt simply because the Respondent in the circumstances decided that his career prospects were best served by changing courses. The intention of the Act, in particular s 106L(3)(a), could not have been that remission of a HECS debt should occur in such circumstances. As was submitted to the Tribunal (see [22]), by enrolling in and then failing to withdraw from his course of study at the University of Newcastle by the relevant census date, the Respondent effectively prevented another student from taking up that place and having the benefit of the funding allotted for it. The Respondent decided that his career prospects were best served by changing courses. He was entitled to do so, but as his actions prevented another student from accessing the University of Newcastle placement and funding he property incurred a HECS debt. The Tribunal’s decision remits the whole of that debt in circumstances where the Respondent has simply made a voluntary decision to further his career prospects as he perceives them. Parliament cannot have intended that such decisions should lead to remission of a properly incurred HECS debt. While the Applicant acknowledges that the hurdle of unreasonableness is a high one, it was made out in Haidar [Haidar v Secretary DSS (1998) 157 ALR 359] at 369, and is also made out in this case.”
In his written submissions, Counsel for Mr Ellem responds as follows:
“In this matter the Tribunal found that the respondent was specifically focused on a career in crime scene investigation; that if he continued with the Bachelor of Science course he would have missed the May 1998 intake for the NSW Police Service; that as only 250 of 800 applicants were successful in being selected and that there was no policy of deferment that the respondent was at risk of not fulfilling his career goal if he continued at the University of Newcastle; that the respondent 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; that this case was significantly different from those cases where a student decides to make a course change after the census date notwithstanding the opportunity to do so before the census date; that the respondent’s circumstances were beyond his control; that the circumstances did not make their full impact on the respondent until after the census date and that it would be unreasonable for the respondent not to pursue the University of Newcastle course while running the risk of never getting an offer from the NSW Police Service.”
I do not think the AAT’s decision unreasonable at all. It is an oversimplification to say that Mr Ellem “decided that his career prospects were best served by changing courses”. So to describe his decision would be consistent with his having made a choice after the census date between two courses that had always been available to him. One could just as well oversimplify by saying that Mr Ellem’s decision never changed because it was always a decision to undertake the available course best suited to qualify him to pursue his chosen career. Simplistic characterisations of either kind are not useful. I suggested earlier that it is to be expected in most cases of applications for remission of HEC semester debts that there will be operative both an element of decision-making by the person and external circumstances beyond his or her control.
I am not persuaded by the particular consideration identified by Counsel for the Secretary in the passage from his written submissions set out above. It may often be the case that non-completion of a course, except where the institution itself has prematurely terminated it, will signify that another person has been denied an opportunity to take up a place in the course and have the benefit of funding allotted to that place. But a failure to allow such a consideration to be determinative does not expose an error of law on the part of the AAT.
Conclusion
For the above reasons the application will be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 26 May 2000
Counsel for the Applicant: Mr T Reilly Solicitors for the Applicant: The Australian Government Solicitor Counsel for the Respondent: Mr B Sharpe Solicitors for the Respondent: Orchiston-Ranzetta-Finney Date of Hearing: 22 May 2000 Date of Judgment: 26 May 2000
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