GMFV and Secretary, Department of Education and Training - [2019] AATA 701

GMFV and Secretary, Department of Education and Training [2019] AATA 701 (16 April 2019)
Division:GENERAL DIVISION
File Number: 2018/1408
Re:GMFV
APPLICANT

AndSecretary, Department of Education and Training
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:16 April 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..............................[SGD].......................................
Member D K Grigg
CATCHWORDS
HIGHER EDUCATION –– late withdrawal – whether any special circumstances exist to re-credit a VET FEE-HELP loan – decision under review affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth)
Higher Education Support Act 2003 (Cth) – Administration Guidelines 2012
CASES
Adamson and Secretary, Department of Education and Training [2015] AATA 141
Brown and Secretary, Department of Education and Training [2015] AATA 518
Currie and Secretary, Department of Education and Training [2017] AATA 1431
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Hneidi And Others v Minister For Immigration And Citizenship (2010) 265 ALR 292; [2010] FCAFC 20
Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 824
SECONDARY MATERIALS
Vet Administrative Information for Providers 2015
REASONS FOR DECISION
Member D K Grigg
16 April 2019
BACKGROUND AND CLAIM HISTORY

On 9 February 2016 the Applicant enrolled as a student in a Diploma of Counselling (“Course”) at the Australian College of Training and Employment (“ACTE”).[1]
[1] Exhibit 1, T Documents, T5, page 129, ACTA Training And Assessment Strategy For Diploma Of Counselling; T9, page 205, Original enrolment form. ACTE is also known as Evocca College and The Change Academy.
When the Applicant completed her Student Profile on 9 February 2016 she acknowledged she could commit to 15 hours a week of study.[2]
[2] Exhibit 1, T Documents, T6, pages 191-194, Student Profile Responses.
On 12 February 2016 the Applicant made a request for a VET FEE-HELP loan. At that time students enrolled in vocational education training could apply for loans to assist them with course fees provided they met the requirements set out at clause 43 of Schedule 1A of the Higher Education Support Act 2003 (Cth) (“Act”). Under clause 55, the Commonwealth must pay the amount loaned to the student by the VET provider to the [education] provider to discharge the student’s liability to pay his or her tuition fees. The Applicant estimated that the Course cost was $18,000 and the estimated duration of the Course was 18 months. Pursuant to her loan application the Applicant acknowledged:[3]
§‘I have read the VET FEE-HELP information booklet and I am aware of my obligations if I receive a VET FEE-HELP loan.
…
§I understand the statements… relating to repayments of VET FEE-HELP debts (and refunds under special circumstances).’
[3] Exhibit 1, T Documents, T8, pages 202 – 204, Request for A VET FEE – Help Loan dated 12 February 2016.
The Applicant also declared the following information:
(a)She had received information from her provider about her rights and obligations, the census date and the estimated cost of the course;
(b)She would repay to the Australian Taxation Office (“ATO”) the amount that the Commonwealth had loaned to her plus the loan fee if applicable; and
(c)Her debt with the Commonwealth would remain if she withdrew or cancelled her enrolment after the census date.
Pursuant to the Act, a higher education provider must set census dates under section 169.25. In order to withdraw from enrolment in a course without any financial penalty the application must be lodged prior to the census date (“Census Date”).
Pursuant to section 4 of the VET FEE-HELP Information booklet (2016):[4]
If you fail a unit, or withdraw from the unit after the census date, you are still liable to pay the tuition fees of that unit, regardless of whether you attended any classes or handed in any assessment items.
If you used a VET FEE-HELP loan, you will incur a VET FEE-HELP debt…
If you failed the unit or withdrew from the unit after the census date because you became seriously ill or because of other special circumstances, you can apply to your Provider to have your FEE-HELP balance re-credited and your HELP debt removed…
[4] Exhibit 1, T Documents, T31, pages 352 - 364, VET FEE-HELP Information for 2016.
On 13 February 2016 the Applicant signed an acknowledgment she: had received the ACTE Student Handbook; had read and understood the Code of Practice that is outlined in the Student Handbook; and agreed to abide by the Conduct set out in the Evocca College Student Handbook (“the Handbook”).[5]
[5] Exhibit 1, T Documents, T3, pages 61 - 84, Evocca College Student Handbook, specifically page 61, signed acknowledgement declaration.
The Handbook relevantly provides that:[6]
[6] Exhibit 1, T Documents, T3, pages 61 - 84, Evocca College Student Handbook.
Re-crediting VET FEE-HELP debt
Students who are eligible for VET FEE-HELP assistance will not incur a debt if they withdraw on or before the census date for that unit of study. In the event that a student withdraws after the census date the student will incur a VET FEE-HELP debt for that unit of study.
If a student withdraws after census date, or has been unable to successfully complete a unit of study, and believes this was due to special circumstances then the student may apply to have their VET FEE-HELP debt re-credited for the affected units.
Please refer to the VET FEE-HELP Re-Crediting and Review Policy and Procedure on the EVOCCA College website for information on how to apply to have your VET FEE-HELP debt re-credited.
Pursuant to the ACTE Withdrawal Policy and Procedure Guidelines:[7]
(a)a student who withdraws from a course or VET unit of study after the published census date will incur a VET FEE-HELP debt for that vet unit of study; and
(b)a student who withdraws from a course or unit of VET study after the census date because of special circumstances may be able to get their VET FEE-HELP debt re-credited if applicable.
[7] Exhibit 1, T Documents, T27, pages 313 – 315, ACTE’s Withdrawal Policy and Procedure.
Pursuant to ACTE’s Re-Crediting and Review Policy and Procedure:[8]
(a)“special circumstances” are those that are beyond the student’s control and did not make their full impact on the student until on or after the census date; and make it impractical for the person to complete the requirements of a cluster within the period during which student undertook, or was to undertake the cluster…;
(b)a student cannot apply for a re-credit [for a full cluster] if they have successfully completed a VET unit of study;
(c)special circumstances do not include: a lack of knowledge or understanding of the requirements for VET FEE-HELP and/or incapacity to repay the VET FEE-HELP debt.
[8] Exhibit 1, T Documents, T28, pages 316 – 323, ACTE’s VET FEE-HELP Re-Crediting and Review Policy and Procedure.
The Applicant was enrolled in four subjects, referred to as CCN1, CCN2, Unit 1, and Unit 2, undertaken as follows:[9]
(a)CCN1 (undertaken between 15 February 2016 and 17 April 2016);
(b)CCN2 (undertaken between 18 April 2016 and 14 August 2016);
(c)Unit 1 (undertaken between 10 March 2017 and 10 July 2017); and
(d)Unit 2 (undertaken between 11 July 2017 and 12 November 2017).
[9] Exhibit 1, T Documents, T12, pages 216 – 217, Confirmation of enrolment details.
The fee for each unit was $4,500.00 and as a result the Applicant incurred a VET FEE-HELP debt totalling $18,000.00.[10]
[10] Exhibit 1, T Documents, see also ST2, page 384 and ST7, page 390; The Respondent explained that the Higher Education Information Management System (HEIMS) report provided at SST13 (page 817) indicates that the Applicant incurred a debt with respect to Unit 1 and Unit 2, but not with respect to the remainder of the Units undertaken in 2017 (as she did not access a VET FEE-HELP loan with respect to those Units).
On 9 September 2016 the Applicant advised ACTE that she wished to cancel her enrolment. ACTE informed the Applicant if she needed to cancel, she had to do so before the next census date rolled over on 14 September 2016.[11]
[11] Exhibit 1, T Documents, T10, pages 212 – 2013, Communication between the Applicant and Evocca College regarding withdrawal in September 2016.
As at 9 September 2016 the Applicant had completed the unit CHCCSL507B (support clients in decision-making processes), which was one of the competencies forming part of her Course.[12]
[12] Exhibit 1, T Documents, T29, page 324, Statement of Attainment dated 9 September 2016.
On 13 September 2016 the Applicant emailed ACTE to advise that due to her circumstances she would be unable to undertake the study and assessments for the Course in which she was currently enrolled and needed to cancel her enrolment. The Applicant gave the following reasons for needing to withdraw:[13]
(a)one of her children was suffering from recurrent ear infections which required them to have surgery to have grommets inserted and that, despite the surgery, they had ongoing issues and will require further surgery and time off school for recovery; and
(b)she was quite behind with the Course because of her child’s health issues and that she wished to recommence next year after all of the operations had been completed.
[13] Exhibit 1, T Documents, T10, pages 212 - 213, Email from The Applicant dated 13 September 2016.
ACTE confirmed the cancellation of the Applicant’s enrolment was effective from
[14] Exhibit 1, T Documents, T26, page 310, Correspondence from Evocca College to the Applicant, dated 3 April 2018.
6 September 2016.[14]
On 1 January 2017 the VET FEE-HELP loan assistance scheme ceased for student’s enrolled in vocational training. However, there were grandfather provisions in place which meant ongoing students could still access the scheme for the 2017 year.[15]
[15] Exhibit 1, T Documents, T22, page 292, Correspondence from Australian College of Training and Employment, dated 28 December 2017.
On 24 January 2017 the Applicant successfully applied to continue accessing the VET FEE-HELP scheme pursuant to the grandfather provisions.[16]
[16] Exhibit 1, T Documents, T15, pages 226 - 231, Email from the Respondent to the Applicant dated
The Applicant re-enrolled in the Course on 17 February 2017.[17] On 10 March 2017 the Applicant’s course (CHC51712) was superseded by CHC51015T and as a result, ACTE automatically withdrew the Applicant from CHC51712 and enrolled the Applicant in CHC51015T.[18]
[17] Exhibit 1, T Documents, T11, pages 214 - 2015, Re-enrolment form.
[18] Exhibit 1, T Documents, T13, pages 219 - 221, Student details.
As at February 2017 the Applicant had completed two competencies in the diploma, CHCCSL501A and CHCCSL001.[19]
[19] Exhibit 1, T Documents, T30, pages 327 – 328, Record of results.
On 20 October 2017 the Applicant requested a study extension and invoice amendment for her VET FEE-HELP debt. The Applicant advised that her child’s health issues had made studying quite challenging and her first child also suffered significant issues as a result of being the victim of bullying which resulted in that child being home-schooled from early August 2017. In relation to the fees payable, the Applicant said she had been charged for cluster 1 and 2 in 2016 under the old Course number but had also been charged for clusters 1 and 2 again in 2017 and requested that her invoice be modified so that she was paying the full amount for just one course.[20]
[20] Exhibit 1, T Documents, T17, pages 240 – 267, Email from the Applicant dated 20 October 2017;
The Course end date was 26 November 2017.[21] However, on 8 August 2017 a decision was made to grant the Applicant an extension until 20 December 2017.[22]
[21] Exhibit 1, T Documents, T12 and T13, pages 218 and 219 - 221, Confirmation of Enrolment and Student Details respectively.
[22] Exhibit 1, T Documents, T15, pages 226 - 231, Email from the Respondent to the Applicant dated
On 26 October 2017 the Applicant was advised by ACTE that:[23]
(a)her debt is the full cost of the Course totalling $18,000 (not including government loan fee), split over the two qualifications due to her transition into the updated course in March 2017. She was also advised that she had not been charged any additional costs;
(b)on 1 January 2017 the VET FEE HELP scheme closed for new students and that grandfathering arrangements had been implemented to minimise disruption to continuing students wanting to continue their studies under VET FEE- HELP in 2017;
(c)under the following arrangements students may be eligible to extend the VET FEE-HELP assistance into 2018 under exceptional circumstances but they must meet both of the following circumstances:
(i)the student must have at least one census date occurring in 2018, be enrolled under the original duration of their VET FEE-HELP ; and
(ii)be actively engaged in a course that has duration longer than 12 months and/or additional factors such as illness and caring responsibilities;
(d)the Applicant did not meet the government requirements for an extension of VET FEE-HELP assistance in 2018.
[23] Exhibit 1, T Documents, T18, page 268, Email to the Applicant dated 26 October 2017.
On 6 November 2017 ACTE advised in relation to applying for a re-credit or refund of her VET FEE-HELP loan:[24]
(a)under the Act and the Vet Guidelines 2015 they are required to remit, re-credit or refund amount under specific circumstances;
(b)she was not eligible for a refund where she had successfully completed a unit of study (cluster) or where she had withdrawn from a course, after the census date;
(c)she may be eligible if there were special circumstances that contributed to her cancellation;
(d)the debt provider must re-credit a person’s FEE-HELP balance if satisfied the special circumstances apply to the person that were beyond the person’s control; did not make their full impact on the person until on, or after, the census date for the VET unit of study; and made it impractical for the person to complete the requirements of the VET unit of study in the period the person undertook or was to undertake, the VET unit of study; and
(e)circumstances that make it impracticable for the person to complete the requirements for their VET unit of study may include: medical circumstances, family/personal circumstances, employment related circumstances and course related circumstances.
[24] Exhibit 1, T Documents, T20, pages 271 – 272, email to the Applicant dated 6 November 2017.
On 9 December 2017 the Applicant again requested an invoice correction and that her VET FEE-HELP debt be assessed on special circumstances pursuant to clause 46 of Schedule 1A of the Act for the following reasons:[25]
[25] Exhibit 1, T Documents, T21, pages 273 – 291, email from the Applicant dated 9 December 2017.
(a)it was her understanding that considering the invoices she has been charged twice for clusters 1 and 2 2016 and 2017, but not cluster 3;
(b)due to the circumstances of:
(i)her eldest child being bullied which resulted in them having to be pulled out of school and being home educated from 7 August 2017;
(ii)the demands on having that child at home and having to reduce her working hours from 5 hours per week to 3 hours per week;
(iii)her second child’s medical health issues, which involved surgical and operations and medical appointments;
(iv)caring for her children on the numerous days they were absent from school;
(v)her house being broken into which involved her car, handbag and wallets being stolen and the stress of having to finalise insurance claims and look after her children who were frightened as a result;
(vi)the family car being involved in a car accident resulting in it being written off and the stress of having to be concerned for her husband’s welfare and dealing with insurance companies and banks to pay and reapply for finance as well as resourcing another vehicle;
(vii)her being referred to counselling services due to stress and adjustment disorder symptoms arising from a challenging year home-schooling her teenage child; and
(viii)her own health issues (including in relation to a knee injury, a shoulder injury, an injury to her left hand, haemorrhoids, postural hypertension, fatigue, stress and adjustment disorder symptoms) resulting in her being unable to retain information or concentrate and which affected her study quality and work output.
On 28 December 2017 the Applicant was advised that due to legislative changes made by the Australian government the VET FEE-HELP program ceased in December 2016 and that while they had been able to continue to support her in 2017 this grandfathering scheme was coming to an end in December 2017. As a result, the Applicant’s enrolment had been cancelled effective 20 December 2017.[26]
[26] Exhibit 1, T Documents, T22, page 292, Letter from ACTE to the Applicant dated 28 December 2017.
On 5 February 2018 the Applicant was advised that a request for a re-credit on her VET FEE-HELP balance was unsuccessful for the following reasons:[27]
(a)when she had applied for VET FEE-HELP assistance she had acknowledged that she had the Student Handbook containing the policies and procedures and course obligations;
(b)she had 14 days from the enrolment of the course to the first census date where she had the ability to cancel the course without being charged;
(c)she completed a Student Enrolment Form that clearly stated obligations that she would need to withdraw prior to the census date in order to prevent incurring the fees for that cluster;
(d)the cancellation request was made after the date of the last census date; and
(e)she had completed one or more units of the study (clusters) and was therefore not eligible for a refund (for that cluster) pursuant to the VET FEE-HELP Guidelines and the study assist website which stated: “There are no provisions under the Higher Education Support Act 2003 (HESA) to have your debt remitted if you have already completed your unit or course of study”.
[27] Exhibit 1, T Documents, T23, pages 294 – 296, Letter from ACTE to the Applicant dated 5 February 2018.
The Applicant was also advised that in relation to the invoicing query:[28]
First enrolment in CHC51712 Diploma of Counselling you only passed through two census dates (being 29/02/2016 and 15/05/2016) and fees applied for this enrolment was $9000. You cancelled your enrolment due to personal reasons. In December 2016 you re-enrolled into the CHC51712 Diploma of Counselling and the course was transitioned to CHC51015 Diploma of Counselling. During this enrolment you passed through two census dates (being 04/04/2017 and 07/08/2017) and fees applied this enrolment was $9000. The result of both enrolments was a total fees applies of $18,000 which is the total cost of the course, as per your initial enrolment in 2016. This is consistent with the information provided to you. Fees of $4,500 per cluster are provided to ACTE as payment for your course. A further 20% loan fee is applied to the loan, as charged by the Department of Education and Training. ACTE has confirmed this with the Department also.
[28] Exhibit 1, T Documents, T23, pages 294 – 296, letter from ACTE to The Applicant dated 5 February 2018.
On 14 February 2018 the Applicant requested a review of the decision regarding the invoiced amount and to request for the debt to be assessed on special circumstances.[29]
[29] Exhibit 1, T Documents, T24, pages 297 – 307, email from The Applicant to ACTE dated 14 February 2018.

On 27 February 2018 the Applicant was advised that her request for review was unsuccessful and she could appeal to the Administrative Appeals Tribunal for review.[30]
[30] Exhibit 1, T Documents, T25, pages 308 – 309, letter from ACTE to the Applicant dated 27 February 2018.
On 3 April 2018 ACTE advised the Applicant that her enrolment in the Course had been cancelled as per her request.[31]
[31] Exhibit 1, T Documents, T26, pages 310 – 312, letter from ACTE to The Applicant dated 3 April 2018.
The Applicant applied for a review of ACTE’s decision of 27 February 2018 to not re-credit the Applicant’s VET FEE-HELP balance with respect to the units of study undertaken as part of her Course.
The parties elected to have the matter decided on the papers.
LEGISLATIVE REQUIREMENTS
The Act sets out in Schedule 1A, the VET FEE-HELP Assistant Scheme (“Scheme”).
Pursuant to section 46 of the Scheme, a student can apply to a VET provider, for the re-credit of their VET FEE-HELP balance in respect of a unit of study. Under subclause 46(2) a VET provider must re-credit a person’s FEE-HELP balance in relation to a VET unit of study 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 (see clause 48); 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 clause 49; 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.
Clause 48 of the Scheme provides that:
For the purposes of paragraph 46(2)(c), special circumstances apply to the person if and only if the VET 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 VET 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.
All of the conditions in clause 48 must be satisfied in order for the Tribunal to find that special circumstances apply.
Clause 49(1) of the Scheme provides that:
(1)If:
(a)the person applying under paragraph 46(2)(d) for the re-crediting of the person's * FEE-HELP balance in relation to a * VET unit of study has withdrawn his or her enrolment in the unit; and
(b)the * VET 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.
The Respondent referred the Tribunal to the VET Administrative Information for Providers 2015 (“VET AIP”) which is a policy document prepared by the Respondent and used by VET providers to assist them to interpret and implement the requirements of the VET FEE-HELP.
The Tribunal is not bound to apply the Guide, but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[32]
[32] ReDrake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Brennan J explained the relevance of an adopted policy to decision-making in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 (“Drake”):[33]
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
[33] See also Singh v Minister for Immigration and Citizenship (2012) 199 FCR 404; [2012] FCAFC 12.
The Full Federal Court in Hneidi And Others v Minister For Immigration And Citizenship (2010) 265 ALR 292; [2010] FCAFC 20 set out the four propositions which emerge from Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (“Drake”) when considering the entitlement of an administrative decision-maker to take into account a statement of governmental policy:
[41]…The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
[42] Second, in the absence of a specific statutory provision (which would no doubt be unusual) the tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
[43] Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the tribunal. That is a matter for the tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
[44] Fourth, the borderline between cases in which the tribunal has abdicated its functions to those of an unthinking application of “government or ministerial policy” to the facts may sometimes be blurred. But where the tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion.[34]
[34] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, at 421.
In Drake, Brennan J (as President of the AAT) noted that:[35]
·“…an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application”.[36]
·“The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function”.[37]
·Further, consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision… and one of the most useful aids in achieving consistency is a guiding policy”.
[35]    Drake at 643.
[36]    Drake at 645.
[37]    Drake at 642.
Chapter 10 of the VET AIP sets out the special circumstances test under clause 46 of Scheme. The Tribunal is unaware of any cogent reason not to apply the Policy.
The Tribunal has jurisdiction to review the decision made under section 46 to refuse to grant the Applicant a re-credit of her FEE-HELP balance pursuant to section 96 and 97 of the Scheme.
ISSUES FOR DETERMINATION
It is not in dispute that the Applicant meets the criteria in clauses 46(2)(a), (b) and (d) of the Scheme.
However, the Respondent contends that:[38]
(a)In relation to CCN1 and CCN2, the Applicant does not meet the criteria in:
(i)section 46(2)(e) because she did not make her application for re-credit of her FEE-HELP balance in relation to CCN1 and CCN2 (2016) before the end of the application period under clause 49 of the Scheme; and
(ii)section 46(2)(c) because she is not a person to whom ‘special circumstances’ apply;
(b)In relation to Unit 1 and Unit 2, the Applicant does not meet the criteria in section 46(2)(c) because she is not a person to whom ‘special circumstances’ apply.
[38] Respondent’s Submissions, dated 19 February 2019.
The issues for determination are whether:
(a)in relation to CCN1 and CCN2, it not was possible for the Re-Credit Application to be made by the Applicant before the end of the application period under clause 49 of the Scheme; and, if it was not possible;
(b)special circumstances apply; and
(c)in relation to Unit 1 and Unit 2, special circumstances apply.
CONSIDERATION
The census dates for the units of study undertaken by the Applicant at ACTE in relation to which she has incurred her VET FEE-HELP debt were as follows:[39]
(a)29 February 2016 for unit of study known as ‘CCN1’; and
(b)12 May 2016 for unit of study known as ‘CCN2’;
(c)4 April 2017 for unit of study known as ‘Unit 1’; and
(d)7 August 2017 for unit of study known as ‘Unit 2.’
(‘the Units’)
[39] Exhibit 1, T Documents, T13, pages 219 – 221, Student Enrolment Details; T14, pages 222 - 225, Commonwealth Assistance Notice.
The Applicant withdrew from the Course on 13 September 2016 and was notified her withdrawal took effect on 9 September 2016. Therefore, pursuant to clause 49 of the Scheme she had until 10 September 2017 to submit an application to re-credit for VET FEE-HELP debt she had incurred in relation to CCN1 and CCN2.
The Applicant did not make her application for re-credit until 9 December 2017 some three months after the end of the application period. As a result, the Applicant can only obtain re-credit of the debt for CCN1 and CCN2 if, the requirement to lodge the application within time is waived, on the ground that it was not possible for the Re-Credit Application to have been made before the end of that period in accordance with clause 46(2)((e)(ii) of the Scheme.
The Applicant submitted that it was not possible for the re-credit application to have been made before the end of the application period because:[40]
(a)she intended to ‘complete my Diploma of Counselling that I began in 2016 and continue to fulfil my dream’;
(b)it would not make sense to apply for a re-credit as in 2017 she was still attempting to complete her Diploma; and
(c)the effects of the events that the Applicant says were ‘special circumstances that were beyond my control’ in 2016 after the census dates (29 February 2016 and
[40] Exhibit 1, T Documents, SST2, pages 405 – 410, Applicant’s statement of 22 June 2018.
12 May 2016) had passed.
The Respondent referred the Tribunal to the decision in Brown and Secretary, Department of Education and Training [2015] AATA 518 (“Brown”) where the Tribunal concluded, at paragraph [35], that for ‘something not to be possible would require a very serious constraint to be placed on a person’s ability to act’ (emphasis added).[41]
[41] See also Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 824 where the Tribunal noted, at [25] that the plain and ordinary meaning of the word ‘possible’ is whether something is capable of being done.
The reasons given by the Applicant do not demonstrate that it was not possible for her to have made the application but rather that she chose not to.
As the Respondent identified, during the 12-month period in question, the Applicant was:
(a)still able to lodge the withdrawal form for her course on 13 September 2016;[42]
[42]    Exhibit 1, T Documents, T10, pages 212 – 213, Applicant’s email to ACTE re cancellation, dated
(b)still able to lodge her opt-in form in January 2017 for the VET FEE-HELP grandfathering scheme on 24 January 2017;
(c)re-enrol in the course on 17 February 2017;
(d)still able to care for her children including:
(i)arranging and attending to her second child’s medical appointments;[43]
(ii)liaising with her first child’s school;[44] and
(iii)cooking, cleaning and school drop-offs and pick-ups.[45]
(e)still able to submit the appropriate forms and information to the department in order to become accredited to home-school her daughter;[46]
(f)still able to arrange and attend her own medical appointments;[47]
(g)still able to submit insurance claims regarding her house break in on 1 December 2016;[48]
(h)still able to contact insurance and finance companies, apply for a loan and purchase a new vehicle following her partner’s car accident on 13 August 2017;[49]
(i)still able to communicate with ACTE staff in relation to recommencing her course and assignments;[50] and
(j)still able to successfully complete two units of competency.[51]
[43]    Exhibit 1, T Documents, T21, pages 273 - 291, Email from Applicant to ACTE, 12 February 2017.
[44]    Exhibit 1, ST Documents, SST2, pages 405 - 410, Correspondence from the Applicant to the Respondent and Tribunal, dated 22 June 2018.
[45]    Exhibit 1, ST Documents, SST2, pages 405 - 410, Correspondence from the Applicant to the Respondent and Tribunal, dated 22 June 2018.
[46]    Exhibit 1, T Documents, T17, pages 240 -267, Attachment of Home School Program to email sent by the Applicant to ACTE dated 20 October 2017.
[47]    Exhibit 1, ST Documents, SST4, page 421 - 423, Correspondence from the Applicant to the Respondent and Tribunal dated 19 September 2018.
[48]    Exhibit 1, T Documents, T1, pages 1 – 46, Application for review and supporting documentation, dated
[49]    Exhibit 1, ST Documents, SST3, pages 411 - 420, Correspondence from the Applicant to the Respondent and Tribunal, dated 27 June 2018.
[50]    Exhibit 1, T Documents,T15, pages 226 - 231, Email from Applicant to ACTE, 14 February 2017; T16, pages 232 - 239, Copy of email communication from the student management system.
[51]    Exhibit 1, T Documents, T30, pages 326 - 328, Applicant’s Record of Results.
Given the above facts, the Tribunal finds that it was possible for the Applicant to make the Re-Credit Application in relation to CCN1 and CCN2 before 10 September 2017. The evidence does not persuade the Tribunal that the Applicant was incapable of submitting her Re-Credit Application within the time limit.
This finding is consistent with other Tribunal decisions such as Brown and Olsen and Secretary [2012] AATA 824 (“Olsen”). In Olsen, even though the Tribunal found the Applicant’s personal circumstances were very severe and that she suffered trauma and ongoing anxiety in relation to her own welfare and that of her children, it found that “she was still able to attend to day-to-day activities”, and therefore it was possible for the applicant to make her application within the 12 month period.[52]
[52] Olsen [2012] AATA 824, at [25]-[27].
The Tribunal finds that with respect to CCN1 and CCN2, the Applicant does not meet the criteria of section 46(2)(e) of the Scheme.
It is therefore not necessary for the Tribunal to consider whether the Applicant satisfies the special circumstances test with respect to CCN1 and CCN2.
DO SPECIAL CIRCUMSTANCES APPLY TO THE APPLICANT IN ACCORDANCE WITH CLAUSE 46(2)(C) OF THE SCHEME IN RELATION TO UNIT 1 AND UNIT 2?
The three circumstances which must be met (see clause 48) in order for special circumstances to apply are that the 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 VET 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.
All of the conditions in clause 48 of the Scheme must be satisfied in order for the Tribunal to find that special circumstances apply.
The circumstances relied upon by the Applicant are set out in paragraph 25 above.
Were the circumstances relied on by the Applicant beyond her control?

[clause 48(a)]; Did the circumstances make their full impact on the Applicant on or after the Census Date for the Unit of Study? [clause 48(b)]; and Did the circumstances make it impracticable for the Applicant to complete the requirements for the unit during the period during which the Applicant undertook, or was to undertake, the unit? [clause 48(c)].
Chapter 10 of the VET AIP explains that circumstances could be considered beyond a person’s control if:[53]
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. This situation would generally be expected to be unusual, uncommon
or abnormal.
[53] Exhibit 1, T Documents, T32, pages 365 – 373, VET Administrative Information for Providers, September 2015.
The Applicant submitted that the circumstances she relies upon were not felt until after the Census Dates. The Census Date for Unit 1 was 4 April 2017 and for Unit 2, 7 August 2016.
Circumstances of the Applicant’s Children
The Tribunal finds that the Applicant had no control over the development of her second child’s ear condition, or her first child being bullied.
In relation to her child’s ear condition, the evidence indicates that:
(a)the child’s condition had begun prior to her initial enrolment in the Course, and therefore prior to the relevant Census Dates;
(b)did not impact on her ability to enrol in the Course or re-enrol in February 2017; and
(c)the child had surgery on 11 July 2016 and 15 September 2016, prior to the Census Dates, and did not impact on the Applicant’s ability to re-enrol in the Course nor did it impact on the Applicant’s ability to apply for funding.
The Respondent relied on Adamson and Secretary, Department of Education [2015] AATA 141 (“Adamson”) at [118]–[120] and Currie and Secretary, Department of Education and Training [2017] AATA 1431 (“Currie”) at [38]).
In Adamson, the Applicant chose to continue studying despite having internet difficulties and despite encouragement to consider withdrawing. The Tribunal found that his failure to withdraw from his course in time was of his own making. In Currie, this Tribunal found that if Mr Currie was suffering from mental health conditions, they arose prior to the Census Date and he should have withdrawn before then and avoided any penalty.
The Tribunal finds the ear condition was not a special circumstance as provided for in clause 48 of the Scheme.
In relation to the bullying of her first child the evidence available indicates that the Applicant was aware of the bullying circumstances in 2016 prior to enrolling in Unit 1 and Unit 2, and prior to the corresponding Census Dates.
Although the Applicant began home-schooling her child as a result of the bullying after the Census Dates:
(a)she knew this was going to occur as early as June 2017 when she removed her child from school and began liaising with the Department;[54]
(b)the home schooling commenced officially one day after the Census Date for Unit 2; and
(c)between 23 January 2017 and 31 March 2017 her child had already spent four weeks at home due the bullying and had spent nearly four weeks at home during third semester of 2016.[55]
[54] Exhibit 1, T Documents, T17, pages 240 -267, Attachment of Home School Program to email sent by the Applicant to ACTE dated 20 October 2017.
[55] Exhibit 1, T Documents, T24, pages 297 – 307, Email correspondence from the Applicant to ACTE, dated 14 February 2018.
The impact of the bullying had occurred prior to the Census Dates.
The bullying circumstances began in 2016 and continued into 2017. The Applicant’s child was removed from school only two months after the Census Date for Unit 1 and prior to the Census Date for Unit 2. The Applicant would have been fully aware in the lead up to the census dates of the impact the bullying circumstances was already having on her ability to study and could have made the decision to withdraw.
The Applicant’s Medical Circumstances

In relation to the Applicant’s medical conditions, the evidence indicates that some of the conditions, the asthma and haemorrhoids, were of a long-standing nature, and certainly present prior to her enrolment. The Applicant would have been aware of the impact of those conditions and whether she should enrol or should continue to be enrolled in the Course.
The Tribunal accepts the Applicant’s hand and shoulder injury made their impact after the Census Date for Unit 1 but not Unit 2 (see chronology supplied by the Respondent set out in Annexure A).[56] The Tribunal is not satisfied, however, that these conditions made it impracticable for the Applicant to complete her study requirements. Further, there are no corroborating medical reports confirming how these conditions impacted on the Applicant.
[56] Respondent’s revised Statement of Facts, Issues and Contentions dated 15 January 2019.
In relation to the fatigue and mental health conditions:
(a)medical records indicate the Applicant was first affected by fatigue after the Census Dates; and
(b)while there is a reference to the Applicant being referred to counselling, no medical reports confirming the Applicant’s mental health conditions and the impact they were having was provided to the Tribunal.
Other Issues
The house break-in occurred in December 2016, five months prior to the Census Date for Unit 1 and 8 months prior to the Census Date for Unit 2.
If the events were significantly impacting on the Applicant by the end of 2016, why did she re-enrol in February 2017?
The Tribunal is not satisfied the Applicant’s circumstances satisfy clauses 48(a) and (b) of the Scheme.
Given the Applicant does not satisfy clauses 48(a) and 48(b) of the Scheme, it is unnecessary to consider whether or not the circumstances relied upon by the Applicant made it impracticable for her to complete the requirements of the relevant units. The Tribunal notes that in December 2017 the Applicant was still communicating with her tutor regarding getting her assignments in by the extension date.[57]
[57] Exhibit 1, T Documents, T19, pages 269-270, Copy of communication between the Applicant and ACTE re submission of assessment, October to December 2017.
For the reasons above the Tribunal finds that special circumstances do not apply. The Applicant is not eligible for a re-credit of her VET FEE-HELP debt.
CONCLUSION
The Applicant’s appeal fails. The decision under review is affirmed.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

............................[SGD]........................................
Associate
Dated: 16 April 2019

Date reserved: 5 March 2019

Applicant: Self-represented

Solicitors for the Respondent: Maddocks Lawyers

24 January 2017.

A “cluster” refers to a VET unit of study which may contain one or more units of competency: Exhibit 1,
T Documents, T28, pages 316 – 323, the ACTE VET FEE-HELP Re-Crediting And Review Policy And Procedure.

24 January 2017.

13 September 2016.

10 March 2018.

Date reserved:	5 March 2019
Applicant:	Self-represented
Solicitors for the Respondent:	Maddocks Lawyers