Ghali and Secretary, Department of Education
[2024] ARTA 282
•8 November 2024
Ghali and Secretary, Department of Education [2024] ARTA 282 (8 November 2024)
ReviewNumber: 2023/8466, 2023/9385
Applicant/s: Maria Ghali
Respondent: Secretary, Department of Education
Tribunal Numbers: 2023/8466
2023/9385
Tribunal:General Member D Stevens
Place:Sydney
Date:8 November 2024
Decision:The Tribunal affirms the decisions under review.
............................[SGD]............................................
General Member D Stevens
CATCHWORDS
HIGHER EDUCATION SUPPORT – HECS-HELP – remission of debts – application for remission made after the end of the application period – whether requirement to make application outside of the application period can be waived – whether it was not possible for the application to be made – whether special circumstances apply – general advice from student centre does not constitute a special circumstance – decisions under review affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth)
CASES
Brown and Secretary, Department of Education and Training [2015] AATA 518
CNPG and Secretary, Department of Education [2022] AATA 4349
Forer and Secretary, Department of Education [2023] AATA 1271Nacol and Secretary, Department of Education, Skills and Employment [2022] AATA 1033
SECONDARY MATERIALS
Higher Education Support (Administration) Guidelines 2022 (Cth)
Statement of Reasons
REVIEWABLE DECISIONS
The Applicant, Ms Maria Ghali seeks review[1] of two decisions[2] of a delegate of the Respondent (“the Secretary”) made on 8 November 2023, to refuse applications that Ms Ghali made on 22 June 2023 pursuant to subsection 36-20(1) of the Higher Education Support Act 2003 (Cth) (“the Act”).[3] In her applications, Ms Ghali sought late withdrawal without penalty from units of study for the Autumn and Spring Sessions in 2013, at the University of Western Sydney (“UWS”). I note that there are two decisions because separate applications were made for each of the Autumn and Spring Sessions.
[1] T1, 1; T2, 17.
[2] T61, 392; T62, 393.
[3] T1, 1, 14-16; T2, 17, 24-26.
Both decisions provided the same reason for the refusal:
You have not provided any evidence or supporting documentation that meets the criteria for late submission. Applications for withdrawal without academic penalty are to be made within twelve months of the end of the teaching session in which you were enrolled in the unit. Applications received after this deadline will only be accepted if one of the following criteria is meet (sic) as set out in the Enrolment Policy.
The effect of the Secretary’s decisions is that the HECS-HELP debt incurred by Ms Ghali for these units of study was not remitted.
BACKGROUND
Ms Ghali enrolled in units of study at UWS in 2011 and studied there in 2011 and 2012.[4] She deferred her course fees for those studies, and sought and received HECS-HELP assistance, which resulted in a HECS-HELP debt for those two years of study.[5]
[4] T68, 478.
[5] FST1, 495, 496.
On 14 January 2013, Ms Ghali received and accepted a letter of offer to study at the University of Sydney (“USyd”).[6] She commenced studying there in Semester 1 in 2013 and incurred a HECS-HELP debt in relation to her studies at USyd from that date onwards.[7]
[6] FST5, 500.
[7] T1, 1, 9.
This is all agreed by the parties. Ms Ghali is aware of and accepts her responsibility for the HECS-HELP debts set out above at paragraph 4.
The dispute arises in relation to HECS-HELP debt incurred by Ms Ghali for the whole of 2013 for units of study at UWS. The Secretary’s records show that Ms Ghali was enrolled in subjects at UWS throughout 2013, notwithstanding that she was also enrolled and studying at USyd.[8] Ms Ghali’s starting point regarding this dispute was that she did not herself enrol in any units of study at UWS for 2013; that this must have occurred automatically without her knowledge or consent; and so she should not be liable for the associated HECS-HELP debt.[9]
[8] ST1, 481, 482 & 494; T68, 478, 478-479.
[9] T1, 1, 5,15-16; T2, 17, 21, 25-26.
Further, Ms Ghali submits that she followed the advice given to her by a person at the student centre at UWS in January 2013 regarding what was necessary to end her enrolment at UWS before the commencement of the 2013 academic year.[10]
Ms Ghali said that she was not aware of these debts until 2021.[11]
[10] T1, 1, 15; T2, 17, 25.
[11] T25, 334.
THE APPLICABLE LAW
The provisions in relation to incurring and remitting a HECS-HELP debt are within section 137-5 of the Act:
Incurring HECS‑HELP debts
(1) A person incurs a debt to the Commonwealth if, under section 96‑1, the Commonwealth:
(a) makes a loan to the person; and
(b) uses the amount lent to make a payment in discharge of the person’s liability to pay his or her *student contribution amount for a unit of study.
The debt is a HECS‑HELP debt.
(2) The amount of the *HECS‑HELP debt is the amount of the loan.
When HECS‑HELP debts are incurred
(3) A *HECS‑HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *student contribution amount for the unit.
Remission of HECS‑HELP debts
(4) A person’s *HECS‑HELP debt in relation to a unit of study is taken to be remitted if section 36‑20, 36‑24A, 36‑24B, 36‑24BB or 36‑24BC applies to the person (even if subsection 36‑20(3), 36‑24BB(3) or 36‑24BC(3) applies to the provider in relation to the person).
For present purposes, section 36-20 of the Act deals with higher education providers repaying HECS-HELP assistance to the Commonwealth in special circumstances:
(1) A higher education provider must, on the *Secretary’s behalf, determine that this section applies to a person if:
(a) the person has been enrolled as a *Commonwealth supported student with the provider in a unit of study; and
(b) the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; and
(c) 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
(d) the provider is satisfied that special circumstances apply to the person (see section 36‑21); and
(e) the person applies in writing to that provider for either or both:
(i) the repayment of any amounts that the person paid in relation to his or her *student contribution amount for the unit; or
(ii) the remission of the person’s *HECS‑HELP debt in relation to the unit; and
(f) either:
(i) the application is made before the end of the application period under section 36‑22; 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.
(2) If the provider determines that this section applies to a person, the provider must:
(a) pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and
(b) pay to the Commonwealth an amount equal to any *HECS‑HELP assistance to which the person was entitled for the unit.
The special circumstances referred to in paragraph 36-20(1)(d) are set out in subsection 36-21(1) of the Act as being circumstances 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; 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.
Subsection 36-21(2) provides that the “Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c)”. Relevantly, the Higher Education Support (Administration) Guidelines 2022 (Cth) provide as follows in relation to circumstances beyond a person’s control, they provide:
12 (1) For the purposes of paragraphs 36-13(3)(a) and 36-21(1)(a) of the Act, a higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which the provider reasonably considers is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
(2) The situation referred to in subsection (1) must be unusual, uncommon or abnormal.
Regarding circumstances that did not make their full impact until on or after the census date, they set out:
13 (1) For the purposes of paragraphs 36-13(3)(b) and 36-21(1)(b) of the Act, 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;
(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.
Relevantly for present purposes, the “application period” referred to in paragraph 36-20 (1)(f) of the Act is defined under subsection 36-22(2), as “the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.”
ISSUES TO BE DECIDED
There does not appear to be disagreement between the parties that, pursuant to subsection 36-22(2) of the Act, the relevant application period for seeking to withdraw from units of study at UWS was about June 2014 for the Autumn 2013 Session, and about December 2014 for the Spring 2013 Session. Ms Ghali applied for withdrawal in 2023, well outside the relevant application period for each session.
Threshold question
As a result, the threshold question is whether pursuant to subparagraph 36-20(1)(f)(ii) it is open to me to waive the requirement that the applications be made before the end of the application period. The legislation provides only one ground on which that can happen, namely “that it would not be, or was not, possible for the application to be made before the end of that period”. If I am not able to waive that requirement, that must be the end of the matter.
Special circumstances
If I do waive that requirement, then I can go on to decide whether there are special circumstances applying to the Applicant (paragraph 36-20(1)(d)). Pursuant to subsection 36-21(1) of the Act, I must be satisfied that all three of the following criteria are met, namely that circumstances:
(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.
If all three are not met, that must be the end of the matter. If all three are met, I can decide to effectively remit Ms Ghali’s debt.
HEARING AND EVIDENCE
The application was heard before me on 9 October 2024. Ms Ghali represented herself and gave oral evidence. Mr Norris appeared for the Secretary. The parties both appeared by video. I also had available to me the Tribunal hearing documents (“T-documents”), including materials held by UWS.
The parties agreed that there were difficulties due to the age of this matter, noting that the events in question occurred in and or around 2012 to 2013. Ms Ghali admitted difficulties in recalling the details of conversations from so long ago, and Mr Norris acknowledged the Respondent was unable to locate all relevant materials.
Ms Ghali gave evidence that she was not having a good experience at UWS in 2012 and sought to study elsewhere. She submitted applications to other universities, including USyd. On receiving an offer to study at USyd in early 2013, she said that she telephoned the student centre at UWS to seek advice on the steps that she needed to take to end her enrolment at UWS. While she said that she could not recall all of the details of the conversation given the passage of years, she said that she was told that all she had to do was not re-enrol for 2013. She said that she trusted that advice as coming from a ‘subject-matter expert’, and from the advice provided she assumed she was not at that time enrolled for 2013. She further stated that it would be unreasonable to expect someone to have known they were enrolled when the advice provided to her was not to enrol. She said that she relied and acted upon that advice and did not enrol at UWS in 2013.
Regarding her enrolment in 8 units of study at UWS in 2013, the Applicant said that she had not enrolled in those subjects. In both of her submissions to the Secretary’s delegate, the Applicant stated, “I did not actively enrol into any units in Semester 1 or Semester 2 in 2013”.[12] She maintained that she must have been “automatically re-enrolled for 2 semesters in 2013,” a process for which she did not provide consent. In both of her Applications for Review of Decision to the Tribunal, she stated that she had “spoken to someone at UWS … who confirmed that the system can automatically re-enroll students.”[13]
[12] T1, 1, 15; T2, 17, 25.
[13] T1, 1; T2, 17.
In support of her contention that she never enrolled, the Applicant provided transcripts to show she was in fact enrolled and actively studying at USyd at that time.[14] She submitted that she would not have enrolled at UWS “when I knew I had applied to transfer universities.”[15] In response to a question under cross-examination regarding her enrolment at UWS in 2013, she replied with words to the effect of, “why would I enrol for second semester if I was planning to get out? Why would I not just enrol in first semester?”
[14] T45, 356, 358-359; 361-362.
[15] FST3, 498.
She further submitted that the pattern of enrolment for 2013, with enrolments on 2 October and 7 November 2012 was inconsistent with her usual practice, as “historically I had always enrolled into all units together.”[16]
[16] Ibid.
The Applicant submitted that she could not have discontinued the units of study as she never knew that she was enrolled in them. She further submitted that she should not have to pay for subjects that UWS enrolled her in without her consent.
With regards to the advice provided to her by the student centre at UWS, under cross-examination the Applicant accepted that it was correct in a generic sense but that it did not apply to her situation. This is consistent with her written submissions: “If I had enrolled, I was given incorrect information by student central.”[17] In her oral evidence, she said that she did not recall whether she had asked if she was enrolled in any subjects, but said that she would have gone through her situation during the call, and that if the officer had done their due diligence, they would have known that the advice provided was insufficient. She said she was not told that she was already enrolled in subjects and was left with the impression that she did not have to do anything further to withdraw from UWS: “not once … did someone advise me I was already re-enrolled.”[18]
[17] Ibid.
[18] Ibid.
The Applicant submitted to the Tribunal that she should not be penalised given that she followed the “expert” advice provided to her.
The Applicant also submitted that after being recorded as having failed four subjects through non-attendance in the 2013 Autumn semester, UWS should have conducted a welfare check and not simply have allowed her enrolment to continue into the Spring Session.
In cross-examination, Mr Norris took Ms Ghali to and through several documents. This included a letter from UWS created in response to enquiries regarding these present proceedings, in which it was said, “we are instructed that students cannot be ‘automatically enrolled’ in units. They are required to log into the student management system to register for each unit themselves”.[19] It also included data and reports from the student management system used by UWS at relevant times, Calista.[20] This section of cross-examination culminated in perusal of a table[21] which summarised and drew together the systems data to demonstrate that enrolment in the various units was done manually by a person logged into the UWS system using Ms Ghali’s student identification details, on 22 October and 7 November 2022.
[19] ST1, 481.
[20] Ibid 482-493.
[21] Ibid 494.
Mr Norris put to Ms Ghali that she was not enrolled automatically, and that she enrolled herself in the subjects. The Applicant said words to the effect that “if the numbers and letters are correct, it implies I enrolled on those two dates”.
When it was put to the Applicant in cross-examination that she may have forgotten that she had enrolled in the units of study when she called UWS to enquire about her move to USyd, she replied “no, I think given the circumstances, that it involved a substantial amount of money, $10,000, I wouldn’t have just forgotten. I wouldn’t forget a big responsibility”.
Under cross-examination Ms Ghali agreed that on enrolling at UWS she had submitted a declaration. She was taken to part of the Enrolment Policy that was applicable at the time, which read “Commencing students are enrolled on completion of the following: … (d) submission of a declaration to be bound by the By-Law, Rules and Policies of the University”.[22] She said that she “was sure” that she would have read that, and agreed the documents were available to her at the time. Mr Norris took her to a further paragraph of that document which read:[23]
Students will be considered to be enrolled from the time the above procedures are completed until the student either:
a) Completes the course of study
b) Resigns (withdraws) from the course of study
c) Takes an approved leave of absence
d) Is excluded or suspended from study
e) Has enrolment terminated due to non payment of compulsory fees; or
f) Fails to re-enrol in the course by the date notified to them by the Academic Registrar’s Office, in which case the student will be regarded as having abandoned the course of study.
[22] T63, 394, 397.
[23] Ibid 400 [30].
The Applicant agreed that none of those criteria had been fulfilled in relation to her enrolment for 2013. She agreed that she had not submitted anything in writing regarding her move to USyd. She agreed that she had not submitted a discontinuation request and said that was because “I was not told it was needed” in her conversation with UWS.
CONSIDERATION
Question of waiver of requirement that application be made before the end of the application period
Ms Ghali’s applications for late withdrawal were made many years after the end of the relevant application periods. The threshold question is whether pursuant to subparagraph 36-20(1)(f)(ii) I can waive the requirement that the applications be made before the end of the application period. The only ground on which the legislation permits me to do this is if “it would not be, or was not, possible for the application to be made before the end of that period”. If this requirement cannot be waived, that must be the end of the matter.
Whether something “would not be, or was not, possible” is not defined by the Act, but guidance is available from case law. In Brown and Secretary, Department of Education and Training (“Brown”),[24] the predecessor of this Tribunal stated that “for something not to be possible would require a very serious constraint to be placed on a person’s ability to act, in this case, by completing an application form and sending that form by email, fax or post…”.[25] Further, “lack of knowledge does not provide … an excuse”.[26] In the more recent matter of CNPG and Secretary, Department of Education (“CNPG”),[27] the presiding Member stated that they “reject the suggestion that Parliament intended to set such an alpine bar in interpreting” the word ‘possible’, and preferred it be “interpreted to mean ‘reasonably possible in all the circumstances’”.[28] I note that in this case the applicant experienced a significant mental health episode.
[24] Brown and Secretary, Department of Education and Training [2015] AATA 518.
[25] Ibid [35].
[26] Ibid [37].
[27] CNPG and Secretary, Department of Education [2022] AATA 4349.
[28] Ibid [85].
The Applicant submits that UWS automatically enrolled her in courses for 2013 without her consent or knowledge. She submits that as a result, she did not know she was enrolled in those units of study at the time, and so it was not possible for her to apply to discontinue her enrolment before the end of the application period.
Ms Ghali agreed under cross-examination that the implication of the Respondent’s evidence taken from their Calista system was that she had not been automatically re-enrolled into units of study in 2013, but had been enrolled manually. On my assessment, she did not go so high as to concede that this in fact was the case.
The Applicant’s position is clear from her testimony before me at hearing. I accept that she grew up in a low-income household; she worked to support herself while studying at university; she was careful with her financial responsibilities; and she did not believe that she would not have taken steps to ensure she did not incur an unnecessary debt of around $10,000 for studies that she did not undertake.
On balance, I am persuaded by the Secretary’s evidence taken from contemporaneous records, that Ms Ghali was not automatically enrolled into subjects at UWS, but rather, a person using her student identification logged on to the UWS system and enrolled manually into the units of study for 2013 on 22 October and 7 November 2012. On the balance of probabilities, I find that this was done by Ms Ghali herself. There is nothing to suggest that another person was using her student identification. I accept that Ms Ghali does not recall doing this and thinks it unlikely that she did. However, she is attempting to both recall matters and recreate her state of mind from nearly 12 years ago. In her submissions she has suggested reasons why she would not have done this. However, the Secretary has also submitted cogent and reasonable hypotheses as to why a student in the Applicant’s situation at the time might well have done this while they awaited advice as to whether they had been accepted into another university. On balance, while I do not doubt Ms Ghali’s honesty, given the significant passage of time since the events, I prefer the evidence available from the Respondent’s contemporaneous records.
Therefore, I am unable to accept the Applicant’s submission that her automatic enrolment led to it being impossible for her to apply to withdraw from the units of study before the end of the application period. There was no automatic enrolment.
It is possible that Ms Ghali forgot that she was enrolled in the subjects. Using the language of Brown, the Respondent submits that this does not amount to “a ‘very serious’ constraint on the Applicant’s ability to act” that “would necessitate a waiver of the application period requirement”.[29] I agree. In any event, Ms Ghali rejected the possibility that she forgot she was enrolled when it was put to her in cross-examination.
[29] Respondent’s Statement of Facts, Issues and Contentions, 17 [65] (‘RSFIC’).
Ms Ghali also submits that the advice from the student centre at UWS misled her, so that it was not possible for her to apply before the end of the application period.
With respect to her interactions with a person at UWS’s student centre, Ms Ghali seeks to recall possibly more than one conversation from over eleven years ago,[30] without the benefit of notes or follow-up correspondence. I believe that she is being honest in her attempts to do this, however I consider that her task is made very difficult by the passage of time. In her email correspondence of 13 September 2023 with UWS the Appellant wrote, “assuming that all Student Central representatives keep a file note of any interaction with a UWS student, I ask that you present the file note and any records of my conversation with the Student Central representative from 2012”.[31] There was no further evidence regarding this issue before me. Given the passage of over a decade, I do not find it unusual if there were no longer any such records. In my view it will never be possible to know the exact terms of any conversation which may have taken place, including how much information Ms Ghali provided to the representative regarding her exact circumstances, or what caveats the representative may have placed on the advice that they provided to her.
[30] FST3, 498.
[31] T1, 1, 15 & 25.
The Applicant places a great deal of weight on this conversation: “I should not be penalised for following the instructions I was given by a representative of UWS”;[32] “I was given incorrect information from student central”;[33] and “This decision is completely unfair as … I had followed their instructions back in 2012”.[34]
[32] Ibid.
[33] FST3, 498.
[34] T1, 1, 5 & 21.
On Ms Ghali’s version of events, the conversation with and advice from the student centre at UWS did not result in it not being possible for her to apply to discontinue the units of study before the end of the application period. Her evidence is that she was told that all she had to do was not enrol for study in 2013. As I have found that she had in fact already enrolled in units of study for 2013, it necessarily follows that following this advice, she would have to do something to ensure that she was not enrolled at UWS in 2013 – it was no longer open to her to simply not enrol, that moment had passed. This Tribunal’s predecessor stated in Nacol and Secretary Department of Education, Skills and Employment [2022] AATA 1033 (“Nacol”): “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”.[35]
[35] Nacol and Secretary, Department of Education, Skills and Employment [2022] AATA 1033 at [45] (‘Nacol’).
Under cross-examination she agreed that this advice was correct if generic, though she said that it did not apply to her situation. She said that the university did not do its “due diligence”. I think that the Applicant is submitting that the advice from the student centre at UWS was deficient as it did not include a caveat that she was already enrolled.
It is unfortunate if the Applicant relied upon advice to her detriment. However, even accepting the Applicant’s version of the conversation and advice, given my finding that the Applicant had herself already enrolled in units of study, it cannot be said that the advice created a situation where it “was not possible for the application to be made before the end of that period”. In my view, notwithstanding the conversation, it remained “reasonably possible in all of the circumstances” for Ms Ghali to apply to withdraw from the 2013 units of study within the application periods.
Ms Ghali has expressed a number of grievances with regards to this matter. She submitted that UWS failed in its duty of care to her; should have exercised due diligence; and may have been negligent. She expressed her strong concerns that after she was recorded as failing her studies for Autumn Session in 2013, UWS allowed her enrolment in Spring Session 2013 to continue without any intervention, leading to the same result, and the same incursion of HEC-HELP debt. I understand her deep feelings about these matters. At this stage, my role is to determine whether there was any matter that made it “not possible” for her to discontinue her enrolment. I understand her grievances, but I do not find that any of these matters, to use the terminology in Brown, caused “a very serious constraint to be placed on [her] ability to act, in this case, by completing an application form and sending that form by email, fax or post”. Nor do I find, to use the terminology in CNPG, that they rendered it not “reasonably possible in all of the circumstances” for Ms Ghali to apply to withdraw from the 2013 units of study within the application period. As found by this Tribunal’s predecessor in Forer and Secretary, Department of Education (“Forer”),[36] “the onus of complying with the relevant requirements was on the Applicant”.[37] In that matter the Tribunal concurred with the finding in Nacol that the “Applicant cannot transfer responsibility for not accommodating her requirements onto the College … It was not up to them to “chase up” the Applicant, the onus of compliance was hers”.[38]
[36] Forer and Secretary, Department of Education [2023] AATA 1271 (‘Forer’).
[37] Ibid [54].
[38] Nacol [72].
Therefore, the necessary requirement having not been met, I cannot waive the requirement that the application be made before the end of the application period, and I must affirm the reviewable decision.
Question of special circumstances
Given my finding, the matter must come to an end, and no further action is required from me. However, given Ms Ghali’s strong sense of grievance about this matter, it is appropriate that I make some brief comments about special circumstances. Even if I waived the requirement that the application be made before the end of the period, I would not find that there were any special circumstances allowing me to determine that section 36-20 applies to the Applicant.
Subsection 36-21(1) sets out that I must be satisfied that the following three criteria are met, namely that circumstances:
(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.
In considering a very similar provision in the Act in Nacol the predecessor to this Tribunal found that the “use of the conjunctive “and” … makes it clear that all three conditions must be satisfied for the Applicant to meet the requirements of her case constituting special circumstances”.[39]
[39] Ibid [83].
From the issues raised by Ms Ghali, I can identify three matters to be considered as possible ‘special circumstances’.
The first of these is that Ms Ghali was enrolled into the units of study at UWS in 2013 without her knowledge or consent. However, as I have found that there was no automatic re-enrolment, this cannot be a special circumstance.
The second matter is the Applicant’s conversation with and advice from the student centre at UWS (the full details of which are lost in time). If I found that the content of the advice provided to Ms Ghali was beyond the Applicant’s control, it remains that the conversation occurred well before the end of the census dates for the units of study. I do not consider that the full impact of the advice was made on or after the census date, so the second criterion is not met. The advice itself did not make it impracticable for the Applicant to complete the requirements for the units of study, so the third criterion is not met. As it is necessary that all three criteria are met, the advice from the student centre at UWS is not a special circumstance.
The third matter is that the Applicant was enrolled and studying full time at USyd in 2013. However, none of this was beyond her control: she enrolled in units of study for 2013 at both UWS and USyd, so the first criterion is not met. The impact of her enrolments was made before the census date, so the second criterion is not met. This is not a relevant special circumstance. In Forer, the applicant was simultaneously enrolled in two full time courses at separate universities. The predecessor to this Tribunal found that while “it would have been difficult for Mr Forer to complete the requirements of the units, there was insufficient evidence to demonstrate it was impractical for him to do so.”[40] Even if I was to find otherwise in this matter, that would still mean that only one of the required three criteria were met, and so this cannot be a special circumstance.
[40] Forer [57].
DECISION
The two decisions of a delegate of the Secretary, Department of Education made on 8 November 2023, to refuse applications of the Applicant for late withdrawal without penalty from units of study in Autumn and Spring Sessions 2013, at the University of Western Sydney, are affirmed.
Date(s) of hearing: 9 October 2024 Applicant: In person Solicitors for the Respondent: Mr M Norris, Department of Education
0
4
0