Faisal and Secretary, Department of Education and Training

[2019] AATA 3608

Faisal and Secretary, Department of Education and Training [2019] AATA 3608 (17 September 2019)

Division:GENERAL DIVISION

File Number(s):       2018/6503

Re:Ahmed Faisal  

APPLICANT

Secretary, Department of Education and TrainingAnd  

RESPONDENT

DECISION

Tribunal:Belinda Pola, Senior Member 

Date:17 September 2019

Place:Brisbane

The decision under review is affirmed.

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

Senior Member Belinda Pola

Catchwords

HIGHER EDUCATION – FEE-HELP debt – application for re-crediting – whether special circumstances exist – decision under review affirmed

Legislation

Administration Guidelines 2012 (Cth)

Higher Education Support Act 2003 (Cth)

Cases
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Faulkner and Comcare [2007] AATA 1541

Zabaneh and Secretary, Department of Education and Training [2016] AATA 569

REASONS FOR DECISION

Belinda Pola, Senior Member

17 September 2019

BACKGROUND

1. The Applicant, Mr Faisal, applied to the University of Queensland (‘UQ’) for a re-credit of his FEE-HELP debt of $5,080.00[1] under s104-25(1) of the Higher Education Support Act 2003 (Cth) (‘the Act’) in relation to a unit of study (CRMD7000 – Mediation) in Semester 1 of 2018.

   [1] Exhibit 1, T11, page 67.

2. The application for remission was declined by UQ on 7 August 2018[2], with the Applicant requesting a review of this decision (known as a ‘Reviewable Decision’) on 4 September 2018[3].

   [2] Exhibit 1, T15, page 87.

   [3] Exhibit 1, T18, page 96.

3. On 9 October 2018, UQ confirmed the Reviewable Decision to not remit the Applicant’s FEE-HELP debt[4] (the Reviewable Decision). Subsequently on 6 November 2018, the Applicant applied to the Administrative Appeals Tribunal (the ‘Tribunal’) for a review of the Reviewable Decision.

   [4] Exhibit 1, T19, page 97.

   JURISDICTION

4. Decisions by higher education providers regarding a refusal to re-credit a person’s FEE-HELP under s104-25(1) of the Act are reviewable decisions under s206-1 (item 2) of the Act.

5. The Tribunal has jurisdiction to review this application. Applications can be made to the Tribunal under s212-1 of the Act, for reconsideration of a Reviewable Decision that has been confirmed, varied or set aside under s209-5 or 209-10 of the Act. The original decision was made on 7 August 2018[5]. A request for a review of this decision by the Applicant was made on 4 September 2018[6], with the decision maker confirming the decision by UQ on 10 October 2018[7].

   [5] Exhibit 1, T15, pages 87 – 94.

   [6] Exhibit 1, T18, page 96.

   [7] Exhibit 1, T19, pages 97 – 101.

   ISSUES

6. The issue before the Tribunal is whether s104-25(1) of the Act applies to the Applicant. That is, whether UQ on behalf of the Secretary of the Department of Education and Training, must re-credit the Applicant’s FEE-HELP balance with an amount equal to the amounts of FEE-HELP assistance that he received for the unit of study he undertook.

7. This in turn requires the Tribunal to consider whether special circumstances apply to the Applicant in accordance with s104-25(1)(c) and 104-30(1), having regard to the Administration Guidelines 2012 (Cth) (the ‘Administration Guidelines’).

   RELEVANT LEGISLATIVE PROVISIONS

8. The following paragraphs outline relevant legislative provisions which apply to this application before the Tribunal.

9. The main provision concerned with re-crediting a person’s FEE-HELP balance is s104-25(1) of the Act, where Higher Education providers on the Respondent’s behalf must re-credit a person’s FEE-HELP balance with an amount equal to the amounts of FEE-HELP assistance that the person received for a unit of study if:

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

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

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

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

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

   (e) either:

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

   (ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.

10. Section 104-30 of the Act outlines special circumstances:

    (1) For the purposes of paragraphs 104-1A(2)(b) and 104-25(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:

    (a) are beyond the person’s control; and

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

    (c) make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake the unit.

    (2) If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.

    (3) For the purposes of paragraph 104-25(2)(c), special circumstances apply to the person if and only if Open Universities Australia 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.

    Note: The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.  

11. Chapter 3 of the Administration Guidelines outlines special circumstances:

    CHAPTER 3 SPECIAL CIRCUMSTANCES

    3.1 PURPOSE

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

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

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

    (c) make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit (paragraph 36-21(1)(c) of the Act).

    3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL

    3.5.1 A higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.

    3.5.5 The situation referred to in paragraph 3.5.5 must be unusual, uncommon or abnormal.

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

    3.10.1 A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:

    (a) before the census date, but worsen after that day; or

    (b) before the census date, but the full effect or magnitude does not become apparent until on or after that day; or

    (c) on or after the census date.

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

    3.15.1 A higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit if circumstances such as the following occur:

    (a) medical circumstances. For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or

    (b) family/personal circumstances. For example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies; or

    (c) employment related circumstances. For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or

    (d) course related circumstances. For example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.

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

    (a) undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or

    (b) complete the required assessable work; or

    (c) sit the required examinations; or

    (d) complete any other course requirements because of their inability to meet (a), (b) and (c) above.

12. Section 104-35 of the Act outlines the Application period:

    (1) If:

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

    (b) the higher education provider gives notice to the person that the withdrawal has taken effect;

    the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

    (1A) If:

    (a) the person applying under paragraph 104-25(2)(d) for the re-crediting of the person’s FEE-HELP balance in relation to a unit of study has withdrawn from the unit; and

    (b) Open Universities Australia gives notice to the person that the withdrawal has taken effect;

    the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

    (2) If subsections (1) and (1A) do not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.

13. Section 104-40 of the Act also provides:

    (1) If:

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

    (b) the higher education provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period;

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

    (1A) If:

    (a) the application is made under paragraph 104-25(2)(d) before the end of the relevant application period; or

    (b) Open Universities Australia waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period;

    Open Universities Australia must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision of the application.

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

    CONSIDERATION

14. The Application was heard in Brisbane on 20 August 2019. The Applicant appeared in person and was self-represented. The Respondent was represented by Ms Kristina Mihalic (Special Counsel), appearing by telephone. The Tribunal considered oral submissions made by both the Applicant and the Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (refer to Annexure 1).

15. In evidence provided orally at the hearing and submitted to the Tribunal, the Applicant outlined how he was impacted by negotiations with his ex-wife relating to a custody dispute for their child during the period of study in Semester 1 of 2018, the relevant time periods were as follows:

    (a)a consent order was filed with the Family Court of Australia on 26 February 2018 and finalised on 26 April 2018 (noting the census date was 31 March 2018[8]); and

    (b)negotiations for custody commenced in earnest from mid-March when the Family Court refused the submitted agreement, with negotiations being described as constant but cyclical in nature during the period up until agreement was ultimately reached (as new issues would arise each time agreement was reached, negotiations would re-commence).

    [8] Exhibit 1, T9, page 63.

16. The Applicant admitted that he was aware of the census date of 31 March 2018, but due to his mental condition resulting from the impact custody negotiations with his ex-wife had on his state of mind, he forgot to withdraw from the course and did so two days after the census date. Evidence before the Tribunal confirmed the application for withdrawal was received at 6.51pm on 12 April 2018[9], however the Applicant argued (with reference to his original email) that he submitted his withdrawal two days after the census date, and that the request was not processed until 12 April 2018. For the purposes of this Application whether it was two days after the census date as the Applicant contends or 12 April 2018 as submitted in evidence to the Tribunal, this is irrelevant; as the request was submitted after the census date and within the 12 month application period[10].

    [9] Exhibit 1, T10, page 66.

    [10] s104-25(1)(e)(i) and s104-35(1) of the Act.

17. The Applicant gave oral evidence that he considered withdrawing from the subject before the census date so that a financial liability was not incurred because it was his belief that he could still be accredited with a mediation certificate simply by attending the participation workshop component of the unit of study. The Applicant said that he did not withdrawal prior to the census date as he was concerned about the public perception of accreditation obtained through an incomplete course. The Applicant also said he would instead wait until closer to the census date to withdraw to avoid this perception, but he ultimately forgot to do so. As an aside, it was pointed out to the Applicant by the Respondent at the hearing, having regard to the submitted course information, the entire course needed to be completed in order for him to be able to achieve accreditation[11].

    [11] Exhibit 1, T4, page 32, para 1.2, “After successfully completing the course, students will meet the training requirements of the National Mediator Accreditation System (NMAS)”.

18. The Applicant acknowledged that he was in receipt of course materials provided to him which outlined the census date and the liability which would be incurred[12]. In response to questioning from the Respondent the Applicant also acknowledged that he had received and replied to correspondence from the course co-ordinator prior to the census date in relation to failing to submit an assessment and encouraging the Applicant to seek an extension prior to the census date. In evidence the Applicant stated that he replied to his course co-ordinator that he intended to request an extension and was subsequently provided instructions on how to do so. The Applicant stated that he had failed to follow this through due to the situation he was experiencing in relation to custody negotiations.

    [12] Referred to Exhibit 1, T3, page 31.

19. The Respondent submitted that the breakdown of the Applicant’s marriage and subsequent custody disputes were beyond his control, but that there was no evidence that the Applicant’s circumstances were so severe that he could not take rational action or that his conditions debilitated him to the point where he could not process the information available to him about his enrolment, withdrawal and census date. The fact that the circumstances existed before the relevant census date meant, the Respondent argued, that it was possible for him to withdraw from the unit before the relevant census date and, accordingly, the withdrawal was in his control[13].

    [13] Exhibit 2, page 7, paragraphs 25 and 26.

20. It is the Tribunal’s role to stand in the shoes of the original decision-maker[14] and determine whether the decision was the correct or preferable one on the material before the Tribunal[15]. 

    [14] Senior Member Hunt in Faulkner and Comcare [2007] AATA 1541 [27].

    [15] Bowen CJ and Deane J in Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419.

21. As mentioned in paragraph 7 of this decision, the Applicant must meet all the elements of the statutory test set out in s104-25(1) of the Act, in order for UQ (on behalf of the Secretary of Education and Training) to re-credit his FEE-HELP assistance that he received for his unit of study.

22. The Applicant satisfies the first three elements of the statutory test in s104-25(1)(a),(aa), and(b) of the Act. He was enrolled in CRMD 7000 – Mediation in Semester 1 of 2018[16], the unit of study was provided by UQ and not by Open Universities Australia, and he did not complete the requirements of the unit during the period which the study was to be undertaken[17].

    [16] Exhibit 1, T7, page 46.

    [17] Exhibit 1, T14, page 85.

23. The contention is whether the Applicant satisfies the requirements of all remaining elements of the statutory test, being s104-25(1)(c),(d) and (e) of the Act.

    Do special circumstances apply?

24. In order for special circumstances to apply, the Applicant must meet the requirements of s104-25(1)(c), s36-21, and 104-30 of the Act, with regard to Chapter 3 of the Administration Guidelines. More simply, he must demonstrate that for the unit of study in question, his circumstances:

    (a)  were beyond his control;

    (b)  did not make their full impact on him until on or after the census date; and

    (c)  made it impracticable for him to complete the requirements for the unit of study in the period during which he undertook, or was to undertake the unit.

25. Circumstances beyond a person’s control are referred to in the Administration Guidelines, and includes a circumstance:

    “… 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”[18];

    Additionally, the situation “… must be unusual, uncommon or abnormal”[19].

    [18] The Administrative Guidelines, 3.5.1.

    [19] The Administrative Guidelines, 3.5.5.

26. The Tribunal accepts that the Applicant’s custody dispute was beyond his control, however the Applicant has not sufficiently demonstrated how his circumstances as a whole resulted in the Applicant being unable to take rational action to withdraw from the unit of study prior to the census date. The Applicant’s custody dispute was known and ongoing well before the census date, with the Applicant giving active consideration to early withdrawal, but instead chose to wait closer to the actual census date, and then simply forgot to withdraw.

27. While the Applicant provided the Tribunal with an explanation as to his mental state at the time, the Applicant did not produce any independent verifiable evidence (medical or otherwise) to support his explanations.

28. The Applicant was in a position to know what he had agreed to and what he needed to do in order to withdraw from the units of study in which he had enrolled and to avoid a FEE-HELP debt. The circumstances were not beyond his control as required by s104-30(1)(a) of the Act[20].

    [20] Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 [43].

29. The Tribunal is not satisfied that the Applicant’s circumstances made a full impact on him until on or after the census date for the unit of study, as the circumstances were well known to the Applicant prior to the census date. The Applicant provided evidence to the Tribunal that custody negotiations had commenced in mid-March 2018, with the census date being 31 March 2018. Indeed, the Applicant had given active consideration to withdrawal prior to the census date but on his own admission had forgotten to do so. Evidence submitted to the Tribunal suggested that negotiations were cyclical; however there was no evidence to suggest they had specifically worsened on or after the census date. The Tribunal is not satisfied that the Applicant meets s104-30(1)(b) of the Act.

1. On evidence submitted, the Tribunal is not persuaded that the Applicant’s circumstances were such that it made it impracticable to complete the requirements of the unit of study within the relevant semester as required by s104-30(1)(c) of the Act[21]. The Tribunal accepts that it certainly may have been difficult for the Applicant to complete the unit of study, but not that it was unable to be done.

   [21] Ibid [45].

2. In view of the findings, the Tribunal is not satisfied that special circumstances apply to the Applicant as required by s104-30(1) of the Act.

   DECISION

3. The Tribunal has found that the Applicant does not meet the requirements of s104-25(1) of the Act, and therefore the Tribunal finds that the Applicant is not entitled to have his FEE-HELP balance for the unit of study re-credited.

4. The decision under review is affirmed.

   I certify that the preceding 33 paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola

   …………[sgd]………………

   Associate

   Date of hearing:  17 September 2019

   Applicant:  In person  

   Solicitors for Respondent:     Kristina Mihalic

   HWL Ebsworth Lawyers

   ‘Annexure 1 – Exhibit Register’

Exhibit

Number

Description

1

Section 37 T Documents received 28 February 2019 (paged 1 to 140)

2

Respondent’s Statement of Facts, Issues and Contentions dated 27 June 2019 (paged 1 to 10)

3

Applicant’s Statement received 12 April 2019 (paged 141 and 142)

4

Respondent’s email regarding their position received 21 March 2019 (paged 1 to 3)