Fischer and Department of Education, Training and Youth Affairs

DECISION AND REASONS FOR DECISION [2000] AATA 756

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/507

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SONJA FISCHER
  Applicant
           And    SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS
  Respondent

DECISION

Tribunal Mr J. T. C. Brassil, AM, Member

Date30 August 2000
PlaceMelbourne

Decision The Tribunal decides to set aside the reviewable decision and determines that the applicant does not have a HECS debt in relation to her enrolment in Semester 1 of 1999 at Monash University.

........(Sgd) J. T. C. Brassil...........
Member
CATCHWORDS
HIGHER EDUCATION CONTRIBUTION SCHEME ("HECS") – whether withdrawal on or before the census date – whether a debt was incurred
Higher Education Funding Act 1988, ss 106J, 106L, 106 MA

Balfour and Secretary, Department of Education, Training and Youth Affairs [2000] AATA 411

REASONS FOR DECISION

30 August 2000 Mr J. T. C. Brassil, AM, Member

This is an application by Sonja Gisela Fischer for review of a decision made by a delegate of the respondent, Ms Jenny Christmass, on 27 March 2000 which confirmed a decision of another delegate of the respondent on 4 January 2000 not to remit the HECS debt which the respondent considered had been incurred by the applicant.
The applicant, who was self-represented, was not able to attend the hearing on 22 August 2000 but was available by telephone. The respondent was represented by Mr Paul Kouris of counsel.
Documents submitted pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence together with a bundle of documents including the envelopes and the original papers the Department received in the Higher Funding Section from the applicant, the Monash University Student Resource Guides for 1999 and 2000, a statement of postal procedures at Monash University and a further consideration by a delegate of the respondent after the applicant had made her appeal to this Tribunal. Other than from the applicant oral evidence, by telephone, was given by Ms Stella Morahan, director of the Student Financing Unit of the respondent's department in Canberra who had made the further consideration.
Facts
The applicant was enrolled for Semester 1 of 1999 at Monash University in the following three subjects in the Faculty of Arts, Language and Society: Sociolinguis, Intermediate Spanish 1A and Spanish Linguistics.
She had also sought acceptance at the University of Melbourne in the German Department of the Faculty of Arts. While overseas in January 1999 she received notification from the Victorian Tertiary Admission Centre (VTAC) that she had been successful (T28, page 50). On return to Melbourne she contacted the university by facsimile on 3 February and received a notice dated 4 February that she could enrol there on 17 February.
The only record available from Monash University that the applicant had indicated in writing that she was not continuing with her enrolment at Monash was annotation on a course enrolment notice returned to that university on 21 April 1999 which stated "3rd Notice. No longer a student at Monash – update your records now" (T11, page 28).
The applicant's withdrawal date accepted by the respondent, confirmed by Monash University (T 17, page 35) , was 21 April 1999.
The census date for Semester 1, on or before which withdrawals had to be made to avoid incurring a HECS debt, was 31 March 1999. (T36, page 64)
In her application on 15 November 1999 for review of the initial decision of the delegate of the respondent she stated that she had cancelled her enrolment at Monash University and said she received three notices from Monash University after the cancellation. On each of these she claimed to have made an annotation about her cancellation as well as on the third notice mentioned above.
Issues before the Tribunal
The threshold issue is whether the applicant withdrew her enrolment in the Faculty of Arts of Monash University for Semester 1 on or before the census date.
If she failed to withdraw before 1 April 1999 consideration can be given to whether circumstances beyond her control existed before or after the census date which prevented her complying with that requirement. The applicant conceded in response to a question from the Tribunal that there were no special circumstances which could be considered. Hence this is not an issue for the Tribunal to determine.
Legislation
The Higher Education Funding Act 1988 states :
"106J
(1)When the Commonwealth under section 57:
(a)makes a loan to a person; and
(b)uses the amount lent to make a payment in discharge of the person's liability to pay a contribution in respect of a course of study in respect of a semester;
the person incurs an HEC semester debt to the Commonwealth equal to the amount of the loan.
(2)The HEC semester debt is taken to have been incurred immediately after the census date in respect of the course of study in respect of the semester, whether or not the Commonwealth has made a payment to the institution in respect of the contribution."

Evidence

The applicant stated in her evidence that she had written to the Faculty of Arts at Monash University notifying her withdrawal on 5 February 1999. (T1, page 6) She also stated that Faculty records were not able to conclusively support or deny her claim that she had sent that letter to the Faculty. A letter from the Acting Course Adviser, Faculty of Arts, confirmed this. (T1, page 7)
She further stated that she had enclosed a copy of that letter in the documents she had attached to her letter of 15 November 1999 seeking review. While all the other supporting documentation had been acknowledged by the respondent as having been included she said her recall was that her letter which she was referring to when she claimed she had cancelled her enrolment was also in the envelope.
It was her recall that she had accessed the Monash University website and also cancelled her enrolment via the internet in February 1999. She stated that students were told to use the internet for enrolments and that was what she had done.
She referred to the letter from Mr R O'Brien, Manager of the Income Section, Monash University, dated 11 January 2000, indicated the University records on which he was depending showed her enrolment had been invalidated because she had not paid her fees while the respondent had been told by another section of the University administration that she had withdrawn on 21 April 1999. She said this was a clear indication that Monash University records could not necessarily be regarded as correct.
Documentary evidence from an officer of the University (T19, page 37) was provided stating that the University website was only open from November to December 1998 and again November 1999 to December 1999. Although subject changes to enrolment could be done on the website from 24 January 2000 to 10 March 2000 this facility was not available on the website in February 1999 when the applicant claims to have gained access.
In her evidence Ms Stella Morahan, director of the Student Funding Unit, stated that the letters from the applicant seeking review, dated 15 November 1999 and 13 January 2000, had been received in that unit of the department, unopened and untampered with, had been opened there and all the documents within the envelopes were stapled together with the envelope and placed upon the file. She stated these originals had been sent from her unit to be exhibited at the Tribunal.
Since the original documents and the envelopes tendered could not be shown to the applicant, as she was participating by telephone, the Tribunal noted that:
(1)the second envelope (13 January 2000) was addressed to the attention of an officer of the Private Funding Section, Higher Education Funding Branch, GPO Box 9880, Canberra, and
(2)the first envelope (15 November 1999) was addressed to The Secretary, Department of Education, Training and Youth Affairs, GPO Box 9880, Canberra.

The Tribunal asked Ms Morahan how this letter could have been delivered unopened to her section when there was no indication on the envelope which would prompt the mail room to send it unopened to that section. The witness could not assist the Tribunal on this issue.
Submissions

The applicant submitted that she had withdrawn in a manner acceptable to the Monash University by letter to the Faculty of Arts on 5 February 1999 and this was well before the census date. She agreed she had been well aware of the need to withdraw before 31 March. She submitted that the university records were conflicting in that one area says she withdrew on 21 April 1999 but another said she had had her enrolment invalidated through non-payment of fees. It was her submission that neither contention was correct as shown by her withdrawal letter of 5 February 1999.
She submitted further that she had sent a copy of the letter of 5 February 1999 with the other documents submitted with her letter of 15 November 1999 seeking review of the HECS semester debt raised by the department. While they may have lost this letter she had stated in her covering letter that she had cancelled her enrolment after receiving the 4 February 1999 letter from the University of Melbourne. This should be taken as notice of her action.
The applicant put her case simply that she had withdrawn before the census date, immediately upon being told to enrol at Melbourne later in February 1999, and had thus never been liable for a HECS semester debt.
Mr Kouris, for the respondent, submitted that the claim by the applicant that she had withdrawn through the internet was not supported by the evidence available from the university that this facility was not available at the relevant time, and not until the current year.
He further submitted that the letter of withdrawal of 5 February 1999 was first seen by the respondent on 13 April 2000 after the original decision had been reviewed. The postal procedures of the university indicated that the letter and the first two returned fees documents, if received, would have been delivered to the appropriate part of the university or returned to Australia Post.
He submitted that the only documentary evidence available to the respondent from the university was the annotation on the notice returned on 21 April 1999 and which formed the basis for the decision of the university officers that the applicant had not withdrawn until then. The applicant had claimed that she had made one formal written withdrawal (dated 5 February 1999) and had sent two previous notices back to the university annotated by her that she had withdrawn previously hence she was asking the Tribunal to conclude all three had been lost within the university.
It was the respondent's submission that the reasonable course of action for someone in her circumstances would have been to contact the University to correct her enrolment status to ensure that she did not incur a HECS debt, rather than merely returning a fees notice to the Fees Department.
consideration of the Issues
To incur a HECS semester debt a student must be enrolled and then fail to withdraw on or before the census date, in this case 31 March 1999. The issue for consideration by the Tribunal is whether the applicant did withdraw prior to the census date.
It appears to be common ground that if the letter of 5 February 1999 had been received by the Faculty of Arts of Monash University sometime in the following 54 days the applicant would have complied with the requirements for discontinuation of her Semester 1 course.
The review and the original decision of the respondent did not consider the 5 February letter because the respondent apparently did not have it for consideration. The reviewable decision therefore did not deal with the implications from it. When it was submitted, again according to the applicant, in the course of this appeal and with it a Statutory Declaration by the applicant which dealt with the circumstances of its despatch to the university it did not vary the decision of the respondent.
Considering the actions of the applicant after her return at the end of January 1999 from overseas the Tribunal has been told that she had received VTAC notice of her acceptance for the University of Melbourne, contacted that University on 3 February, received confirmation of the extended enrolment date of 17 February in a letter dated 4 February and sent the 5 February letter to Monash University withdrawing her enrolment. Later she cancelled her e-mail address with Monash University. Such a sequence appears to the Tribunal to be "reasonable steps" for the applicant to take.
The respondent disputes only whether the 5 February letter was sent.
The applicant also claims to have taken action for cancellation of her enrolment by accessing the university website. The Tribunal, in accepting the evidence submitted concerning the website, is satisfied that such action was not available. The Tribunal rejects the claim that the applicant makes on this matter but notes that if the 5 February letter was sent and received by the university the website action is not an issue.
The respondent drew to the attention of the Tribunal a decision of Senior Member Gibbs of 29 May 2000 in Balfour and Secretary Department of Employment, Training and Youth Affairs [2000] AATA 411 which may be persuasive in considering this matter. The Tribunal distinguishes Balfour as the applicant there was not able to produce a copy of a withdrawal letter and relied on a Statutory Declaration which had not indicated the address to which he stated he had sent the letter. Balfour then turned to the issue of special circumstances which is not at issue in this application.
The Tribunal must decide whether, on the balance of probabilities, the applicant sent the letter of 5 February. The evidence of Ms Stella Morahan concerning the envelopes being delivered to her section unopened and not tampered with could have been persuasive. However as she was unable to explain how a letter addressed to the respondent with no external indication of its contents could have been delivered unopened to her section opens the possibility that it was opened first in the mail room. There is then a possibility that the 5 February letter may have been included by the applicant as she has continued to claim.
The Tribunal, after considering the sequence of actions of the applicant which she describes upon her return from overseas and the existence of the copy of the letter of withdrawal dated 5 February 1999 finds that she did in fact take all reasonable steps to notify her discontinuance to the Faculty of Arts of Monash University. The lack of definitive evidence from Monash University and the statement of the Acting Course Adviser of the Faculty of Arts leads the Tribunal to accept that it is probable that the letter was received.
Having determined to accept that the withdrawal letter was sent and probably received at Monash University it is not necessary for the Tribunal to consider whether or not the two fees notices prior to 31 March were returned with annotations as claimed by the applicant.
Conclusion
The Tribunal finds that the applicant did take reasonable steps to notify her withdrawal from Semester 1 of 1999 at Monash University. The Tribunal will set aside the reviewable decision and determines that the applicant did not incur a HECS semester debt.
I certify that the thirty-seven (37) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J. T. C. Brassil, AM, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  22 August 2000
Date of Decision  30 August 2000
Solicitor for the Applicant         Self-represented
Counsel for the Respondent    Mr P. Kouris
Solicitor for the Respondent    Australian Government Solicitor

[2000] AATA 756

30 August 2000

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Administrative Decision Making

Reasonable Steps

Statutory Interpretation