Georgiou and Secretary, Department of Education and Training
[2019] AATA 170
•18 February 2019
Georgiou and Secretary, Department of Education and Training [2019] AATA 170 (18 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1528
Re:Danniella Georgiou
APPLICANT
AndSecretary, Department of Education and Training
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:18 February 2019
Place:Sydney
The decision under review is affirmed.
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Senior Member A Poljak
CATCHWORDS
HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-credit – whether application made before end of application period – whether period should be waived – special circumstances – mental health condition – whether applicant’s circumstances were beyond her control – whether applicant’s circumstances made their full impact on or after the census date – Tribunal does not find special circumstances – decision under review affirmed
LEGISLATION
Administration Guidelines 2012 (Cth)
Higher Education Support Act 2003 (Cth) ss 104-25, 104-30, 104-35, 104-40, 238-10
CASES
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
REASONS FOR DECISION
Senior Member A Poljak
18 February 2019
In January 2013, Danniella Georgiou, the applicant, enrolled in a Bachelor of Psychology at the Australian College of Applied Psychology (ACAP). The applicant incurred a FEE-HELP debt in respect of four units of study in which she was enrolled as part of the Bachelor of Psychology. The debt was in relation to the following units of study (Units):
(a)Introduction to Psychology (PSYCH 1022);
(b)Conflict Management (COUN 1031);
(c)Counselling Skills 1 (COUN 1011);
(d)Organisational Behaviour (BUSM 1011).
Each unit had an equivalent full-time student load and a census date of 8 March 2013. The census date is the last day on which the student may withdraw from a unit of study without incurring a FEE-HELP debt for that unit.
On or around 29 June 2015, the applicant applied to ACAP for the re-credit of her FEE-HELP debt under section 104-25(1) of the Higher Education Support Act 2003 (Cth) (the Act).
On 14 April 2016, a delegate of the Secretary, Department of Education and Training (the respondent) declined the applicant’s application for re-credit of her FEE-HELP balance. This is the decision under review in these proceedings.
The issues for determination in these proceedings are whether all of the requirements of subsection 104-25(1) of the Act applied to the applicant in respect of the Units, in particular, whether paragraph 104-25(1)(e) can be satisfied and if so, whether there are ‘special circumstances’ that applied to the applicant.
Relevant Legislative Provisions
A person can apply to a higher education provider, for re-credit of the person’s FEE-HELP debt in respect of units of study under section 104-25 of the Act. Subsection 104-25(1) sets out the circumstances in which a higher education provider must, on the respondent’s behalf, determine that section 104-25 applies to a person. Relevantly, sections 104-25(1)(c), (d) and (e) of the Act provide:
(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 for the end of that period.
Section 104-30 provides:
(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.
Section 104-35 provides:
(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.
(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.
Section 104-40 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.
(2)The notice must include a statement of the reasons for the decision.
Subsection 238-10(1) of the Act provides that the Minister may, by legislative instrument, make Guidelines of various kinds, including the Administration Guidelines 2012 (Cth) (Administration Guidelines). Chapter 3 of the Administration Guidelines deals with ‘special circumstances’.
Consideration
On or around 18 February 2013, the applicant commenced the Units of study. The applicant submits that, three weeks later, she decided to withdraw from the course as she was suffering from depression and anxiety. In a statutory declaration declared on 29 June 2015, she states:
“I recall in late February 2013, I spoke to a woman, whose name I cannot recall, and I told her that I was leaving the counselling skills course I was attending. The woman put a note in my file, or so she told me. I hereby declare that at no time was I given any paperwork to fill in, or sign confirming my departure from the course. I note that my departure would have been known by faculty as I did inform administration, who told me that they would inform my teachers”.
The applicant’s evidence is that she was not aware of her FEE-HELP debt until she completed her tax return in 2015 and discovered that she owed a debt in the sum of $8000 for the Units of study.
The applicant relies on a letter of Ms Kim Malone, clinical psychologist, dated 7 November 2017, which provides:
“I am writing in regards to [the applicant], whom I have known on a professional basis since 25 October 2017.
[The applicant] presented following a referral from her general practitioner, Dr Vincent, for an opinion and management in the context of depression.
Upon further assessment [the applicant] reported full Diagnostic Statistics Manual-Version 5 (DSM-V) for Adjustment Disorder with Depressed Mood.
Such an Adjustment disorder was subsequent to multiple stressors, including a relationship breakdown, as well as ongoing stress from her inability to resolve a recurrently and increasingly invoiced outstanding Vet-fee amount for a course in Psychology she enrolled in at Australian College of Applied Psychology (ACAP) in February 2013, during which she attended only three lectures, and then left the course.
Around the time I had met [the applicant]…
… she stated she believed she had withdrawn from the Course, however had since been advised she had not done so in a formal basis. Nonetheless, [the applicant] did not receive accurate information from the administrative staff and as a result did not go through the correct procedures, of which she only learned in hindsight. Such hindsight came following her group certificate notification of a debt, which has increased annually since that time, and her contacting ACAP.
…
I am writing to support her in being excused from such a debt through the miscommunication, as well as cognitive confusion which was present throughout the stressful experiences she went through in 2012, which continued through 2014, and intermittently since. Herein, [the applicant] did not possess the presence of mind, clarity in decision-making and problem-solving processes to successfully resolve this financially burdensome issue”.
The applicant’s re-credit application was not made within the statutory time period. The time limit for an application under paragraph 104-25(1)(e) of the Act is a threshold issue in this matter as it requires that the applicant’s application to re-credit her FEE-HELP balance be made either before the end of the application period in section 104-35 of the Act - being 12 months after the applicant’s withdrawal notice takes effect - or 12 months after the period during which the applicant was to undertake the Units. The ACAP has no record of the applicant’s indication to defer or leave the Units of study or the Bachelor of Psychology before the census date. The relevant 12 month period is then to be calculated from when the Units of study concluded, namely the end of Trimester 1, 2013, which was 17 May 2013, as such the relevant 12 month application period expired on 17 May 2014 (relevant application period). The applicant applied to ACAP for the re-credit of her FEE-HELP debt under section 104-25(1) of the Act on or around 29 June 2015, just over 12 months late.
ACAP has the power to waive the 12 month application period if the applicant demonstrated that “it would not be, or was not, possible for the application to be made before the end of that period”; see section 104-40(1)(b) of the Act. The records show that three emails were sent to the applicant on 5 June 2013 (for three of the Units of study), advising her that she had exceeded the maximum number of classes that can be missed for the Units. The applicant claims, under sworn evidence, that she never received that correspondence and this is accepted by the respondent. I accept the applicant’s evidence that she was unaware of her FEE-HELP debt until she completed her income tax return in 2015; it follows that this lack of knowledge meant that it was not possible for the applicant to make an application for re-credit before the relevant period expired on 17 May 2014. I am satisfied that the relevant application period should be waived.
The remaining question is whether subsection 104-25(1) of the Act applies to the applicant in relation to the Units. I must be satisfied that circumstances occurred (section 104-30):
(a)which were beyond the applicant’s control with respect to that unit;
(b)which did not make their full impact on the applicant until on or after the census date for the unit; and
(c)which made it impracticable for the applicant to complete the requirements of the unit during the period in which the applicant was to undertake that unit.
The above requirements are cumulative, meaning that for the test to apply and for the applicant’s FEE-HELP debt to be re-credited, the applicant must satisfy all elements of the statutory test. When determining this question I have also had regard to the Administration Guidelines.
In regard to whether the circumstances were beyond the applicant’s control with respect to the Units, I note that the applicant had available to her, and was aware of, the ACAP UG and VET Domestic Student Guide 2013 (the Guide). At hearing the applicant stated that she doesn’t recall seeing it however she acknowledged that it would have been a document provided to her. Upon signing her enrolment form to ACAP, the applicant declared that she was aware of the Guide. The Guide details that “Notification of withdrawal from your course must be made in writing to ACAP via submission of a Withdrawal from Study Form to the Student Administration Department”. The lack of knowledge of course requirements in circumstances where that information is readily available to the student and failure to follow relevant course or program requirements that have been communicated to the student are not considered circumstances that are beyond the student’s control; see Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 (3 August 2016) (Zabaneh).
The applicant’s evidence is that she suffered from depression and anxiety prior to ‘withdrawing’ from the Units; during the time she was enrolled in the Units and prior to the census date. This is confirmed by the evidence of Ms Malone who advised that the applicant suffered “cognitive confusion” throughout “the stressful experiences she went through in 2012, which continued through to 2014, and intermittently since”. While I accept that the applicant’s condition is beyond her control, I am not satisfied that it made its full impact on the applicant until on or after the census date for the Units. At hearing the applicant confirmed that her circumstances occurred and were known before the census date. Therefore, I am not satisfied that that the applicant meets section 104-30(1)(b) of the Act.
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 impractical for this to be done. I note that in the letter of Ms Malone she speaks of the applicant’s cognitive difficulties and its impact on her decision-making capabilities; I give this evidence little weight as it is not contemporaneous to when the applicant allegedly withdrew from the Units, or the census date in 2013.
Decision
As I have found that the applicant does not meet the requirements of section 104-25(1) of the Act, she is not entitled to have her FEE-HELP debt re-credited. The decision under review is affirmed.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 18 February 2019
Date(s) of hearing: 7 February 2019 Applicant: In person Solicitors for the Respondent: Mr L Holcombe, HWL Ebsworth Lawyers
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