Forer and Secretary, Department of Education
[2023] AATA 1271
•27 April 2023
Forer and Secretary, Department of Education [2023] AATA 1271 (27 April 2023)
Division:GENERAL DIVISION
File Number: 2022/8355
Re:Mr Jack Forer
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date of decision: 27 April 2023
Date of written reasons: 19 May 2023
Place:Melbourne
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
.........................[sgd]...............................................
Ms A E Burke AO, Member
Catchwords
EDUCATION – HECS-HELP – debt remission – whether special circumstances apply – enrolled in two courses – full impact not on or after census date – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Competition and Consumer Act 2010 (Cth)
Higher Education Support Act 2003 (Cth)Cases
Adamson and Secretary, Department of Education [2015] AATA 141
Currie and Secretary, Department of Education and Training [2017] AATA 1431
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Nacol and Secretary, Department of Education, Skills and Employment [2022] AATA 1033
PJPF and Secretary, Department of Education and Training [2016] AATA 833
Tralongo and Secretary, Department of Education [2016] AATA 393
Ullah and Secretary, Department of Education and Training [2018] AATA 2159Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
Secondary Materials
‘About VTAC’, VTAC (Web Page, 14 June 2022) < Guidelines 2012
REASONS FOR DECISION
Ms A E Burke AO, Member
19 May 2023
BACKGROUND
Mr Forer is seeking a review of a decision by Monash University to uphold an earlier decision not to re-credit his HECS-HELP balance in relation to HECS‑HELP assistance given to him pursuant to sections 97-25 of the Higher Education Support Act 2003 (Cth) (the Act), for study in a Bachelor of Commerce and Bachelor of Biomedical Science in Semester 1, 2022.
On 19 January 2022, Mr Forer accepted a first-round offer from Monash University (Monash) by enrolling online via the Monash web portal. The census date for Mr Forer’s enrolment was 31 March 2021.
Shortly after this, Mr Forer received a second-round offer from the University of Melbourne (Melbourne), which he accepted, and he subsequently commenced study there in Semester 1, 2022.
On 4 April 2022, Mr Forer was contacted by Monash as part of a retention campaign to ascertain if he intended to continue his studies at Monash. Mr Forer advised that he did not wish to continue in the course as he was studying elsewhere and that he was unaware that he had to discontinue the units he enrolled in at Monash following his acceptance of an offer at Melbourne.
On 11 April 2022, Mr Forer submitted a request to Monash for remission of his HECS-HELP debt in relation to the Semester 1, 2022 units. On 14 July 2022, Monash declined his application and on 14 September 2022 Monash affirmed this decision on internal review, stating:
After careful consideration the Associate Director, Student Conduct and Complaints, has decided not to remit your debt for the above units.
Normally, a unit which was not formally discontinued prior to the census date will be recorded on the academic record and will be liable for fees (even if it is subsequently discontinued). In special circumstances it may be possible to remit the debt for a unit. Special circumstances are those that are:
·beyond the student’s control; and
·made their full impact on the student on or after the census date; and
·made it impracticable for the student to complete the requirements for the unit during the study period.
…
Reasons for Appeal Decision
After careful consideration of your application, including evaluating all the issues and how they contributed to your situation, I have decided that your situation does not demonstrate special circumstances. In particular, Monash Enrolments have confirmed that:
·you enrolled in B2021 and selected the units listed above on 19 January 2022;
·you received confirmation of this enrolment via a message on the screen and an email sent to your student account on 19 January 2022;
·on 20 January 2022 an email was sent to your student account confirming your HECS-HELP payment option nomination;
·you therefore did receive emails to your Monash student email account regarding your enrolment;
·in your email to Kellie R of the Special Circumstances team on 30 May 2022 you wrote “I did not know it was possible to be enrolled in multiple HEC’s [sic] funded tertiary places”.
·it was not beyond your control to check whether it was possible to be enrolled in multiple HECS-funded courses, and whether you actually remained enrolled at Monash University after you enrolled at the University of Melbourne.
I am therefore unable to overturn the original decision not to refund your fees.
On 11 October 2022, Mr Forer applied to the Tribunal for review of the internal review decision, stating:
I believe the decision to deny my request for a remission of debt should be reviewed because:
- I was encouraged to accept and enrol in the course offered in the first round of VTAC offers
- I was provided no subsequent correspondence from Monash about enrolment and/or the options I had before the census date.
- Monash appear to have sent correspondence to an email address they created. I did not see this and was not notified correspondence was sent. I cannot access this. At the very least Monash should have provided notifications that I have important information I need to access (this should have been sent to the email address I enrolled with and/or my telephone number and/or my residential address).
- I was provided no information from Monash, VTAC or Melbourne university about duplicate enrolments. It is assumed that you cannot and should not be able to accept and enrol in 2 or more commonwealth supported university placements. To be encouraged to accept first round offers and then send new “more preferred” options, I should have been advised to take action to avoid a duplicate enrolment.
- Monash must have been aware I was not attending lectures and/or tutorials prior to the census date, but they only chose to contact me only after the census date.
Mr Forer appeared by video at the hearing on 27 April 2023, assisted by his father, and Ms Emma Letcher-Boldt, solicitor at Clayton Utz, appeared for the Respondent. The Tribunal made an oral decision to affirm the decision under review at the conclusion of the hearing.
LEGISLATION
The Act governs the provision of financial support to students and the repayment of a person’s contributions, or remission, of a HECS-HELP debt in respect of a unit of study in certain circumstances.
A HECS-HELP debt is incurred when the Commonwealth makes a loan to a person and uses the loan amount to make a payment to a higher education provider to discharge the person's liability to pay the student contribution for a unit of study. HECS-HELP debt is taken to have been incurred immediately after the census date for the unit. A higher education provider must re-credit a person's HECS-HELP if:
(a)the person has been enrolled in the unit with the provider; 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; and
(d)the person applies in writing to the provider for re-crediting of the HELP balance; and
(e)either:
(i)the application is made before the end of the application period 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.
Under s 36-20 of the Act, where a person has not completed a unit of study they may, as in this matter, apply for remission of a debt which must be granted where the provider is satisfied that special circumstances apply to the person.
‘Special circumstances’ are defined as applying to a person under s 36-21(1) if, and only if, they:
(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; and
(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
The Administration Guidelines 2012 (the Guidelines) have been made under s 238-10 of the Act. A decision made in respect of special circumstances must, under s 36-21(2) of the Act, be made in accordance with the Guidelines.
Chapter 3 of the Guidelines addresses the circumstances in which a higher education provider is to be satisfied as to the existence of special circumstances.
Paragraph 3.5.1 of the Guidelines provides that circumstances 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’. Paragraph 3.5.5 provides that the situation must be ‘unusual, uncommon, or abnormal’.
Paragraph 3.10.1 of the Guidelines provides as follows:
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 or 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.
ISSUES
The issue which the Tribunal had to determine was whether special circumstances apply to Mr Forer’s situation.
CONTENTION
Mr Forer
Mr Forer submitted that:
(a)it was unreasonable that no correspondence was provided by Monash University to his personal email address, postal address and/or residential address to confirm his enrolment and/or his rights and obligations in relation to his enrolment;
(b)whilst it was not beyond his control to check whether it was possible to be enrolled in multiple HECS-HELP assisted courses, it was reasonable for him to assume that a student cannot accept and enrol in multiple HECS-HELP assisted courses given these offers are all managed through the Victorian Tertiary Admissions Centre (VTAC);
(c)broader based consumer protection law has not been adhered to;
(d)Monash had not advised him that all communication to newly enrolled students would be via his Monash student email and through no other form of electronic or written communication;
(e)he has been charged $5,660 for an enrolment he did not know about and cannot be expected to have reasonably known about given the circumstances; and
(f)he was only contacted by Monash University (by telephone) after the census date (i.e., when it was too late to withdraw without financial penalty).
Mr Forer contended that he satisfied all three requirements for a refund and that the entire HECS-HELP loan amount for the units in the Bachelor of Commerce and Bachelor of Biomedical Science degrees in Semester 1, 2022 should be remitted.
In support of his contention that special circumstance existed in his case, Mr Forer submitted that:
(a)it was not unreasonable that he accepted the offer from Monash and enrolled as per the instructions he was given:
(i)he was encouraged to enrol with Monash despite advising the University that this was not the course he wanted to undertake; the audio file demonstrated that he called Monash on 14 January 2022 and they advised him to accept the Monash offer even though he did not want to undertake the course; and
(ii)an email from VTAC on 14 January 2022 stated, “To accept the offer you will need to enrol in the course” and the VTAC website states, “You shouldn’t wait for the results of future offer rounds before you enrol to accept your current offer.”
(b)It was unreasonable for him to know that he would receive no correspondence from Monash, given that:
(i)Monash advised “We will notify you when your Enrolment Details and Fee Statement is available in WES” but does not say it will only provide this notification to a Monash email address they create;
(ii)Monash’s documentation does not indicate that they will only correspond to the new email address they create and not send any confirmation or correspondence to the email address and or residential/postal address that was used to enrol (as would be reasonably expected);
(iii)the ‘Student Acknowledgment, Agreement and Consent’ that a student clicks ‘I Agree’ to at the end of the on-screen enrolment does not advise that Monash will not provide confirmation of enrolment to a student’s personal email address; and
(iv)Melbourne provided regular correspondence to his personal email address after this registration; additionally, he is aware that Swinburne University also correspond to students’ personal email addresses.
(c)It is reasonable to assume that Monash was aware that he was not involved in the course prior to the census date as he did not complete a timetable and had not attended any lectures or tutorials at Monash.
Mr Forer contended consumer protection laws, as per the Competition and Consumer Act 2010 (Cth), have not been complied with and it was not reasonable for Monash (or any business) to supply a contact to a 17 or 18-year-old, have them sign online through a series of clicks, and then not provide a copy of the contract or any correspondence in relation to their rights and obligations.
Mr Forer contended the enrolment practices which Monash University have undertaken are harsh and go against good conscience, referring to sections 20 and 21 of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010).
Mr Forer contended it was reasonable to assume that his acceptance of the Melbourne offer overrode the Monash enrolment as VTAC manage the offer process and its processes should prevent a situation where a student can accept multiple Commonwealth Supported Places (CSP). Mr Forer contended it did not make sense that a student can accept multiple CSPs and deny other students the opportunity for education.
Department of Education
The Respondent contended that the Tribunal could not be satisfied that Mr Forer’s circumstances satisfy the conditions set out in subsection 36-21(1) of the Act, as he had not demonstrated that the circumstances:
(a)were beyond his control; and
(b)made their full impact on or after the census dates for the Units; and
(c)made it impracticable for him to complete the requirements of the Units.
The Respondent submitted that the Guidelines require circumstances to be 'unusual, uncommon or abnormal' in order to be considered beyond the person's control and state that this criterion will be satisfied if 'a situation occurs that 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'.
The Respondent submitted the Tribunal has previously found that circumstances will not be beyond an Applicant's control:
(a)where the Applicant was aware of their circumstances, either pre-enrolment or before the census date, and therefore made a choice to enrol, or to not withdraw before the census date, and assumed the risk that their circumstances might impact their studies, on the basis that the applicant's incurring of a FEE-HELP debt arisen due to their action or inaction within the meaning of the Guidelines (as in the matters of Adamson and Secretary, Department of Education [2015] AATA 141, Currie and Secretary, Department of Education and Training [2017] AATA 1431 and PJPF and Secretary, Department of Education and Training [2016] AATA 833 (PJPF); or
(b)where the Applicant's circumstances have existed for an extended period of time, such that they are not unusual, uncommon or abnormal for that applicant within the meaning of the Guidelines (as in the matters of PJPF and Tralongo and Secretary, Department of Education [2016] AATA 393.
The Respondent contended that having regard to the steps taken by Mr Forer to enrol in the units, the Tribunal should be satisfied that he was, or ought to have been, aware that he was enrolled in the units.
The Respondent submitted this was particularly so in Mr Forer’s circumstances as he had declared in his electronic Commonwealth Assistance Forms (eCAF) that he was aware that he had an obligation to repay his HECS-HELP loan regardless of whether he completed his studies or not, and that his debt to the Commonwealth would remain if he withdrew or cancelled his enrolment from the units after the census date.
The Respondent submitted Mr Forer had declared that he had read the CSP and HECS-HELP information booklet, which specifically provides that he was required to complete his provider's formal withdrawal process by the census date in order to withdraw from the units without incurring a HELP debt and that, if he was enrolled with more than one provider, he would need to withdraw from each one individually. This booklet also set out the relevant special circumstances criteria.
The Respondent contended that it was not beyond Mr Forer’s control to verify his enrolment status at Monash at any time after he had enrolled in the units and/or to check what the effect of his enrolment at an alternative university was on his enrolment in the units at Monash and/or to check whether it was possible to be enrolled in multiple HECS-HELP assisted courses, and to accordingly discontinue the units of study with Monash by the census date.
The Respondent submitted that Mr Forer had conceded that it was not beyond his control to check whether it was possible to be enrolled in multiple HECS-HELP assisted courses.
The Respondent contended that the Tribunal should not be satisfied that Mr Forer’s assertion that he was unaware that he was able to be enrolled in multiple HECS-HELP assisted courses demonstrates that his circumstances were beyond his control in the sense required by the Guidelines.
The Respondent submitted Mr Forer’s misunderstanding that it was not possible to be enrolled in multiple HECS-HELP assisted courses was formulated prior to the census date.
The Respondent submitted Mr Forer’s circumstances did not relevantly change after the census date. The only aspect of Mr Forer’s circumstances that changed following the census date was that he became aware that he remained enrolled in the units, and therefore was liable to pay the associated HECS-HELP assistance for the units.
The Respondent contended that Mr Forer had not established that his circumstances made it impracticable for him to complete the requirements of the units during Semester 1.
The Respondent submitted the Tribunal has provided guidance as to the circumstances that will make it impracticable for a person to complete the requirements of a unit. The meaning of the word 'impracticable' was discussed in Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at [45], as follows:
As unfortunate as it is that Mr Zabaneh does not enjoy good health and that his parents have died, we are not satisfied that his circumstances were such that it was impracticable for him to complete the requirements of each unit within the relevant semester as required by s 104-30(c).27 "Impracticable" means "not able to be done" [Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers]. On the evidence, it might have been difficult for him to do so but the circumstances on which Mr Zabaheh relies were not such that completion of the requirements of the four units of study was not able to be done.
In the matter of Ullah and Secretary, Department of Education and Training [2018] AATA 2159, the Tribunal considered whether an Applicant's circumstances, namely the ill-health of his wife and newborn daughter, and the need to return to a remote part of Pakistan to obtain family support and assistance for his wife and daughter, constituted special circumstances. On the question of whether these circumstances made it impracticable for the Applicant to complete his study requirements, the Tribunal stated at [36]:
In my view none of the matters canvassed made it impracticable for Mr Ullah to continue his studies. Mr Ullah's problems with his studies certainly made it more difficult for him to succeed, but they did not make it impracticable to continue, and he acknowledged during the hearing that although internet access in his village was limited, it was not so limited as to make it impossible for him to continue his studies. His loss of employment when he left Pakistan no doubt reduced his income, but did not prevent him from studying. His wife's health, as noted above, did not, on the evidence available to me, change significantly after the census date and so there is no evidence that it had an impact on his ability to study.
Similarly, in the matter of Georgiou and Secretary, Department of Education and Training [2019] AATA 170, the Tribunal concluded at [20]:
I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. However, while the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of the Units, it is insufficient to establish that the circumstances were such that it was impracticable for this to be done.
The Respondent submitted that Mr Forer asserts that he did not complete the requirements of the units of study on the basis that he was unaware that he was still enrolled at Monash, given that he says he was unaware that he could be enrolled in multiple HECS-HELP assisted courses. The Respondent contends that Mr Forer’s circumstances do not establish that he was not able to complete the requirements of the units.
The Respondent submitted at most, even if it is accepted that Mr Forer did not know he was enrolled, his circumstances only demonstrate that he did not know he had to complete the course, not that he could not. In any event, Mr Forer would readily have been aware that he remained enrolled in the units if he had checked his Monash student email account, as he had agreed to do, and it was not impracticable for him to have verified his enrolment status in this way.
CONSIDERATION
Pursuant to section 36-20(1)(d) of the Act and Chapter 3 of the Guidelines, special circumstances only apply to a person where the circumstances are: beyond a person's control; and make their full impact on or after the census date; and make it impracticable for the person to complete the requirements for the unit of study during the relevant study period.
The conditions established in s 36-21(1) of the Act are cumulative, and all of those conditions must be met in order for the Tribunal to be satisfied that special circumstances apply in order to find in Mr Forer’s favour.
The Tribunal found, based on the evidence, that Mr Forer withdrew from his units on 4 April 2022 after the census date of 31 March 2022. The Tribunal therefore finds that Mr Forer has a HECS-HELP debt.
The Tribunal shares Mr Forer’s frustration that his situation could have been avoided if the Monash retention team had contacted him before the census date. The Tribunal also appreciates Mr Forer’s annoyance that in respect of the retention call Monash was able to contact him via another form of communication other than his Monash student email.
The Tribunal observes that it would have been obvious to Monash that whilst Mr Forer had enrolled in the Bachelor of Commerce and Bachelor of Biomedical Science degrees in 2022, he had never in fact commenced the course. The Tribunal, whilst sympathetic to Mr Forer’s grievance, indeed scepticism, that Monash did not reach out to him until after the census date, it cannot find that this amounts to special circumstances.
As the Tribunal determined that Mr Forer has a HECS-HELP debt, it next had to consider if the debt could be remitted in accordance with the 36-21(1) of the Act, determining if his circumstances:
(a)were beyond his control; and
(b)made their full impact on or after the census dates for the Units; and
(c)made it impracticable for him to complete the requirements of the Units.
The Tribunal was not persuaded by Mr Forer’s contention that it was beyond his control to withdraw from the units because Monash had failed to communicate with him by any means other than his Monash student email address. Mr Forer advised the Tribunal that he generated his student email when he completed his online enrolment in January 2022 but had not accessed this email account since then.
The evidence clearly indicates that Mr Forer gave consent to access correspondence from Monash via his student email on a regular basis. The ‘Student Acknowledgement, Agreement and Consent’ which Mr Forer clicked ‘I Agree’ to stated:
I agree to be bound by the Student Charter, the University regulations, and policies, procedures and schedules of the University that apply to the University’s students, as amended from time to time, and I agree to pay all fees, levies and charges directly arising from my enrolment.
I consent to receiving electronically, information and business documents relating to my enrolment from the University and from University-owned companies that provide support services to students on behalf of the University.
I agree to access the correspondence of my Monash University student email account on a regular basis.
The evidence indicates that Mr Forer was capable of understanding the enrolment process at Monash and that he was able to access his Monash student email to complete his enrolment online. The Tribunal was unable to conclude that it was beyond Mr Forer’s control to discontinue his studies at Monash. As an enrolments coordinator at Monash stated in an internal email dated 9 September 2022:
The following information supports that the student enrolled themselves into the B2021 course and the documentation they received to support this enrolment:
19/01/2022 - student completed mandatory form on WES, including their request to pay their CSP, student contribution amount via Government HECS-HELP loan.
19/01/2022 - student enrols themselves via WES into their 2022 units.
19/01/2022 - unit enrolment transaction number provided to student on screen and via email to students account once they submitted their unit enrolment in WES.
20/01/2022 - Fee Statement email sent to student email account confirming that the student had chosen the HECS-HELP payment option
As Senior Member Puplick noted in the matter of Nacol and Secretary, Department of Education, Skills and Employment [2022] AATA 1033 (Nacol), inaction is fatal to any claim. It was Mr Forer’s inaction to withdraw from the course at Monash which has led to his HECS-HELP loan debt having been raised. Senior Member Puplick stated in Nacol at [41]-[45]:
What is taken to be “beyond the control” of an applicant is clearly defined in the Guidelines which must be applied to any application.
In essence they provide that if the circumstances arise from some direct or indirect action or inaction on the part of a person themselves, then they cannot be regarded as circumstances “beyond their control”.
Moreover, those circumstances must be unusual, uncommon or abnormal (pursuant to subsection 12(2)).[33]
The Tribunal accepts that the Applicant’s situation was “unusual, uncommon or abnormal” in that, although ill-health is not in itself to be so characterised, in this instance the impact on the Applicant, coming on as suddenly as it did and requiring immediate infusions, was out of the ordinary. This was especially the case given that these events coincided exactly with the dates of her examinations.
However, inaction (or failure to take action) on the part of an applicant where they had the opportunity and capacity to take action, must be fatal to any claim.
The Tribunal, based on all the evidence before it, determined that there was no change in Mr Forer’s circumstances on or after the census date for the units. Mr Forer was at all times enrolled in the courses. At the hearing, the Tribunal enquired whether Mr Forer had suffered an illness, injury or tragedy which prevented him from withdrawing before the census date, but he advised he had not.
The Tribunal was not persuaded by Mr Forer’s contention that he was unaware he could be enrolled in two degrees at one time. All parties accept it was not beyond Mr Forer’s ability to ascertain if he could, in fact, be enrolled in two courses at one time. Mr Forer demonstrated his ability to interact with VTAC when he enquired about accepting his first-round offer. The Tribunal notes that a simple enquiry at that time to ascertain what he should do if he received and accepted a second-round offer would not seem an unreasonable enquiry to have made.
The Tribunal was not persuaded by Mr Forer’s contention that VTAC should be able to manage the process of making university placement offers and acceptances, to ensure a student cannot be enrolled in two courses. The Tribunal notes that VTAC’s webpage outlines that it administers offers to students for participating institutions:
VTAC is the central office that administers the application processes for places in tertiary courses, scholarships and the Special Entry Access Scheme at universities, TAFEs and independent tertiary colleges in Victoria (and a few outside Victoria). VTAC receives and forwards application information and supporting documentation to the relevant authorities at institutions.
VTAC is not a selection authority, does not determine the selection criteria used by institutions and does not decide who will receive an offer. All decisions about which applicants are offered a place are made by the course selection authorities at institutions.
After selection decisions have been made by the course authorities at institutions, VTAC sends offer messages to successful applicants on the institutions’ behalf.
VTAC is not a government body—it is funded by participating institutions and processing fees paid by applicants.
VTAC had no way of knowing if Mr Forer had accepted his first, second, or in this case, both offers. As VTAC makes clear, once an offer has been sent to a student, it is incumbent on that student to accept the offer by enrolling in the course. The enrolment is then managed by the individual institution. Monash and Melbourne are standalone institutions governed by their own councils, independent of each other; they would have no way of knowing that Mr Forer had enrolled at both institutions.
The Tribunal notes the Respondent’s submissions in the matter of Nacol, referenced by the Respondent, where the Tribunal found that the Applicant genuinely misunderstood and misinterpreted the relevant process associated with the completion of her university course. However, in considering impracticability, the Tribunal determines that the onus of complying with the relevant requirements was on the Applicant, and that the Applicant's misunderstanding did not make it impractical for the Applicant to comply with the requirements.
The Tribunal concurs with the finding of Senior Member Puplick in Nacol at [72]:
The Applicant cannot transfer responsibility for not accommodating her requirements onto the College when it was the organisation with responsibility to determine matters such as examination dates. It was not up to them to “chase up” the Applicant, the onus of compliance was hers
The Tribunal accepted on one level that Mr Forer’s circumstances made it impracticable for him to complete the requirements of the units during Semester 1 as he was unaware that he was still enrolled in the course and had not completed his timetable or attended any lectures or tutorials. The Tribunal accepted that this would have made it very difficult for Mr Forer to complete the requirements of the units. However, as is evident from the case law cited by the Respondent, the bar set by decision makers for the inability of an Applicant to complete units is very high.
The Tribunal concluded that whilst it would have been difficult for Mr Forer to complete the requirements of the units, there was insufficient evidence to demonstrate that it was impractical for him to do so. Regardless of an inconclusive finding on 36-21(1)(c), Mr Forer’s application cannot succeed as the Tribunal has determined he does not meet the requirements of 36-21(1)(a) and (b).
The Tribunal found, based on the evidence, that Mr Forer's circumstances:
(a)were not beyond his control, and
(b)made their full impact before the census date, and
(c)did not satisfy the requirements of the Act to make it impracticable for him to complete the requirements for the units of study at Monash.
The Tribunal was therefore satisfied that Mr Forer's circumstances do not amount to special circumstances, as required under section of the Act, in order for Mr Forer to have his HECS-HELP debt with respect to the Semester 1, 2022 units in the Bachelor of Commerce and Bachelor of Biomedical Science at Monash remitted.
DECISION
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member
.........................[sgd]..............................................
Associate
Dated: 18 May 2023
Date of decision: 27 April 2023 Applicant representative: Mr Simon Forer (Applicant’s father) Advocate for the Respondent: Ms Emma Letcher-Boldt Solicitors for the Respondent: Clayton Utz
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