GQPH and Secretary, Department of Education

[2024] AATA 39

GQPH and Secretary, Department of Education [2024] AATA 39 (18 January 2024)

AppID:GQPH and Secretary, Department of Education

Division:GENERAL DIVISION

File Number:          2022/9076

Re:GQPH

APPLICANT

AndSecretary, Department of Education

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member 

Date:18 January 2024  

Place:Sydney

The reviewable decision is affirmed.

...............[Sgd].........................................................
Mr S Evans, Member

Catchwords

HIGHER EDUCATION SUPPORT – FEE-HELP debt — Application for re — credit — Whether requirement that applicant be made before end of application period can be waived — Whether it was or was not possible for the application to be made within the application period — Decision 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

Secondary Materials

Higher Education Support (Administration) Guidelines 2022

REASONS FOR DECISION

18 January 2024

INTRODUCTION

1. GQPH (the Applicant), enrolled in a Bachelor of Film (Production) (the course) at SAE Institute Australasia (SAE) on 11 September 2014.[1] He incurred a FEE-HELP debt for the following 4 units of study in which he was enrolled for Trimester 3 of his studies:

   ·CIU110 Critical Thinking in Creative Media

   ·MDU111 Storytelling for Contemporary Media

   ·MDU116 Introduction to Cinematography and Film Production

   ·MDU117 Postproduction Principles & Technique.[2]

   [1] T4/28

   [2] T5/35

2. Trimester 3 commenced on 22 September 2014. The last day to withdraw from the units of study (the census date) was 10 October 2014.[3] The Applicant accepts he made no attempt to withdraw from the course and did not complete the requirements for all 4 units of the course.

   [3] T5/35-36

3. The Applicant requested recredit of his FEE-HELP balance on 8 August 2022 based on family and personal circumstances relating to his mother’s health.[4] That request was refused by SAE on 25 August 2022.[5] The Applicant sought review of that decision in accordance with section 209-10 of the Higher Education Support Act 2003 (Cth) (the Act), which SAE confirmed pursuant to paragraph 2019-10(4)(a) of the Act (the Review Decision).

   [4] T14/128-129

   [5] T15/134

4. The Applicant now seeks review of the Review Decision at the Administrative Appeals Tribunal, which is provided for by subsection 212-1(1) of the Act. For the reasons that follow, the Review Decision will be affirmed.

   THE RELEVANT LEGISLATION AND GUIDELINES

5. The Act provides for circumstances under which a person may have their FEE-HELP debt re-credited. Section 104-25 of the Act relevantly provides:

   104‑25  Main case of re‑crediting a person’s HELP balance in relation to FEE‑HELP assistance

   ....

   (1)       A higher education provider must, on the *Secretary’s behalf, re‑credit a person’s *HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person received for a unit of study if:

   (a)            the person has been enrolled in the unit with the provider; and

   (aa)access to the unit was not provided by *Open Universities Australia; 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 section 104‑30); 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 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 before the end of that period.

6. Section 104-30(1) of the Act provides for special circumstances:

   (1)For the purposes of paragraph 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.

7. Subsection 238-10 of the Act provides for the Minister to make guidelines by legislative instrument providing for matters including assessing whether special circumstances apply under subsection 104-30(1) of the Act. The Tribunal must have regard to section 12-14 of the Higher Education Support (Administration) Guidelines 2022 (HESA Guidelines) which provide: 

   Part 3 – Special circumstances

   12  Circumstances beyond a person’s control

   (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.

   Note :  Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.

   13     Circumstances that did not make their full impact until on or after the census date

   (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.

   Note :  Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.

   14 Circumstances that make it impracticable for the person to complete the requirements

   (1)For the purposes of paragraphs 36-13(3)(c) and 36-21(1)(c) of the Act, a higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study if the person undertook, or was to undertake, the unit in the following kinds of circumstances:

   (a)medical circumstances—for example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying;

   (b)family or personal circumstances—for example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies;

   (c)employment related circumstances—for example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or

   (d)course related circumstances—for example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.

   (2) The requirements for a unit of study referred to in subsection (1) are that the person:

   (a)undertakes the necessary private study required, or attends sufficient lectures or tutorials or meets other compulsory attendance requirements in order to meet their compulsory course requirements;

   (b)       completes the required assessable work;

   (c)       sits the required examinations; or

   (d)       completes any other course requirements. 

   Note :Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.

8. Section 104-35 of the Act defines the ‘application period’ in paragraph 104-25(1)(e): 

   (1)       If:

   (a)the person applying under 104‑25(1)(d) for the re‑crediting of the person’s *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.

   ISSUES TO BE DETERMINED

9. The Act provides that an application for re-credit may be made 12 months after the period during which the Applicant was to undertake the units of study. As the completion date for the units of study which comprised Trimester 3 was 19 December 2014,[6] the application period per the subsection 104-35(2) definition was 20 December 2014 to 20 December 2015 (the application period).

   [6] T6/36

10. It follows that the issues to be determined are:  

    (i)whether the application period specified in section 104-35 can be waived on the basis that it would not be, or was not, possible for the application for re-credit to be made before the end of that period; and if so

    (ii)whether special circumstances as provided for by paragraph 104-25(1)(c) of the Act apply to the Applicant in relation to the units of study.

    CONSIDERATION

    The Applicant’s circumstances

11. The Applicant submits that he was prevented from continuing his studies, withdrawing from the course, or making an application for re-credit within the application period due to his mother’s mental health conditions.

12. In his application to SAE for special consideration dated 8 August 2022 the Applicant states he was unable to apply for re-credit at an earlier date due to ‘severe circumstances beyond my control’. He also details his experience of his mother’s mental health condition:

    … Extreme cases of having a mental patient at home, scary, living in constant fear of what was going to happen next, mum going around to places, people, the absurd stories she envisioned, the amount of care she needed, constant attention, all about her 24/7, yelling at late hours of the night, screaming, walking around like a zombie, causing noise & distress

    The time where my mum got taken away from me forcefully by authorities, before that my parents would argue all the time, yelling, screaming, violence which became normal at home i thought all families would go through this, the things you wouldn't know is the continuous nights at home where I couldn't sleep, travel, I’d be woken up all the time, mum would always talk to me even if I told her to stop, nothing could stop her.[7]

    [Errors in original]

    [7] T14/128

13. The Applicant outlined the consequences in a statement provided 7 March 2023:

    I wasn't able to study from home i requested, deferring wasn't a possibility as the situation was far from fixable, withdrawing or going on campus i could not as my mother required a very high duty of care & i was the responsible adult or care taker. This kept going until March 2016 as shown in the [Community] health team was keeping a close eye on her.

    [Errors in original]

14. In evidence are clinical notes and medical reports relating to his mother’s mental health condition. Correspondence dated 8 July from a clinical psychology registrar at a community mental health service confirms the Applicant’s mother was admitted to a ‘psychiatric hospital from March to April 2013’, that she was a patient of the community mental health service from April 2013 to March 2016 and since November 2019.[8]

    [8] T1/8

15. In correspondence dated 15 March 2023 the Applicant’s GP Dr Mark Sheps confirms the Applicant’s mother has been attending his practice for many years and has suffered from bipolar disorder type I and major depressive disorder. Dr Sheps writes that between February 2014 and March 2014 the Applicant’s mother ‘experienced a severe relapse of her bipolar disorder which severely impacted on [the Applicant]’s studies’.

16. The Applicant gave evidence that he was his mother’s primary carer and his father was required to work between 4:30 am and 5:00 pm most days. The Applicant stated that his mother’s mental health condition was his priority and that he was ‘the responsible adult or caretaker’ and his mother required a ‘very high duty of care’.[9] He was required to monitor his mother to prevent her from causing harm to herself or others when she had manic episodes. The Applicant was also frequently required to explain his mother’s behaviour to people she had telephoned when she was experiencing manic episodes.   

    [9] Applicant’s Statement dated 7 March 2023 (Applicant’s Statement)

17. Dr Sheps confirmed the Applicant’s mother was admitted to hospital, from which she occasionally absconded. He also confirms that the Applicant was required to chase his mother after she ran away from home while being visited by the Community Mental Health team.

18. The Applicant’s evidence was that he was required to fulfill tasks which his mother could no longer perform because of her illness. His responsibilities included taking his sister to and from school and helping with cleaning, cooking, taking care of the family’s animals and his mother’s ‘personal duties like tax etc’.[10] 

    [10] Applicant’s Statement

19. His mother’s condition placed heavy demands on the Applicant’s time and affected his own mental health. Dr Sheps completed an ‘impact assessment statement’ as part of an application for remission of debt in special circumstances dated 8 August 2022. In the assessment Dr Sheps states the Applicant was suffering from ‘an adjustment disorder with severe anxiety (related to the shock when his mother was scheduled for a mental disorder and forcefully transported to hospital)’.[11]

    [11] T14/132

20. Dr Sheps considers the Applicant’s condition significantly impacted his ability to perform tasks between 1 January 2013 and 12 December 2014. Dr Sheps reports the Applicant was unable to travel or attend, do sustained reading, note taking and writing, and was unable to perform a task requiring intense concentration for 1-2 hours.[12]

    [12] T14/132

21. In a letter dated 6 June 2023, registered psychologist Dr Carmelo Pollicina writes he has been counselling the Applicant’s mother ‘for her condition of bi-polar disorder and schizophrenia’ since 2013. He also confirms having held a consultation with the Applicant who was attending with his mother. Dr Pollicina does not provide a date for the consultation with the Applicant, but writes that ‘at that time [the Applicant] appeared to be very negatively affected by his mother’s condition, especially during the period of time included [sic] between November 2013 and May 2014’. 

22. In correspondence dated 18 August 2023, Dr Pollicina states that between September 2014 and December 2014 the Applicant was ‘not in the position to formally withdraw from the course that he had enrolled in because his mother did not wish to have her condition publicly revealed at that time’. 

23. Though both Dr Sheps and Dr Pollicina refer to the period ending December 2014, I accept the Applicant’s assurance both were incorrectly instructed by the Applicant that the Application Period ended in 2014. Given the broad nature of their observations and the purpose for which the reports were obtained, I accept the Applicant’s contention that the reports should be read as covering the period ending in December 2015. 

24. During the hearing the Applicant was taken to the student enrolment form he completed on 11 September 2014.[13] He conceded he had not read the entire document at the time he signed it, but confirmed he was aware there was a fee for undertaking the course which he would be liable to pay after census date.[14] He also conceded he did not read the student handbook but was aware he would be required to pay the entire course fee if he did not withdraw prior to the census date.

    [13] T4/26-29

    [14] T4/28

25. There is evidence SAE sent the Applicant at least five emails in relation to the course from November 2014 to January 2015.[15] There is no record of the Applicant responding to any of the emails. On 29 January 2015 Leng Ho of SAE emailed the Applicant again to advise that he had attempted to contact him by phone and requested the Applicant call him urgently.[16]

    [15] T8-T12/112-126

    [16] T12/125

26. The Applicant agrees that SAE had attempted to contact him during this period, and recalls answering a telephone call during which he claims to have explained his personal circumstances and recalls being told he would have to attend the SAE campus to withdraw from the course, which he says he was unable to do. He claims he was not offered a way to withdraw from the course that did not require him to attend campus. 

27. There is no record of this conversation in evidence. In any event, the first attempt by SAE to contact the Applicant appears to be an email regarding an assessment sent on 12 November 2014, more than a month after the 10 October 2014 census date. As such the evidence leads me to conclude the Applicant was already liable for the course fees when SAE sought to contact him.  

    Can the application period set out in 104-25(1) be waived?

28. Based on the documentary evidence, and the oral evidence of the Applicant and his mother, I accept that his mother’s condition placed considerable demands on the Applicant’s time during the application period. Based on Dr Sheps’ report and the Applicant’s evidence, I accept that the Applicant experienced mental health issues including anxiety and adjustment disorder which affected his capacity to perform some tasks.

29. As previously mentioned, the application period requirement may be waived under paragraph 104-25(1)(e)(ii) of the Act if ‘it would not be, or was not, possible for the application to be made before the end of that period’. 

30. The words ‘not possible’ are not defined by the Act but have been considered in previous decisions of the Tribunal. In Brown and Secretary, Department of Education and Training[17], the Tribunal considered the meaning of ‘possible’ as it related to an application for withdrawal from a course and stated: 

    In our view, it cannot be said in the circumstances described by Ms Brown that it was not possible for her withdrawal application to have been made within the 12 months following the conclusion of the first Trimester of her studies. The word possible is defined in The Shorter Oxford English Dictionary in the following way: 1. That may be (ie is capable of being); that may or can exist, be done, or happen; that is in one’s power, that one can do, exert, use, etc. It should be immediately apparent that use of the word possible gives rise to a broad range of circumstances under which some action may be taken. 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…  

    
    
    

    [17] Brown and Secretary, Department of Education and training [2015] AATA 518, [35]

31. In CNPG and Secretary, Department of Education[18] Senior Member Morris considered the analogous provision in paragraph 36.20(1)(f)(ii) and rejected the submission that it should require ‘a very serious constraint’ for something not to be possible. The Tribunal concluded that Parliament did not intend to set such an ‘alpine bar’, and ‘possible’ in this context meant ‘reasonably possible in all the circumstances’.

    [18] CNPG and Secretary, Department of Education [2022] AATA 4349, [85]

1. The reasons the Applicant gave for not being able to make his re-credit application within the application period included that he needed to attend to his mother’s tax and financial affairs and to make telephone calls on her behalf. The Applicant indicated that these duties were time consuming and demonstrated the extent to which he was required to assume her responsibilities in addition to supervising and caring for her.

2. It is not in dispute that the Applicant’s mother was admitted to hospital between April and May 2013 and that the Applicant was aware of her condition when he chose to enrol in the course. In response to the inference that his enrolment in the course indicated he considered he could meet the requirements of the course and care for his mother, the Applicant submitted that prior to his enrolling in the course his mother had been admitted to hospital on only one occasion and required limited treatment.

3. The Respondent contends that the medical records indicate that the Applicant’s mother’s condition was improving throughout much of the application period. The Applicant argues that the medical records should be viewed with an appreciation that downplaying or understating her symptoms was an indication his mother’s condition was deteriorating.  The Respondent submits that the medical records should be given more weight where they conflict with the Applicant’s evidence. I do not make a finding in this regard.

4. Regardless of the parties’ disagreement as to the seriousness of his mother’s condition throughout the application period, I accept that the Applicant’s obligations towards his mother and family were time consuming, stressful and detrimental to his own mental health. The evidence supports the Applicant’s contention that his mother’s health curtailed his capacity to attend to his own affairs, particularly as he prioritised the obligations he had towards his family.

5. However, I do not consider he was unable to request re-credit of his FEE-HELP balance by completing an application form in the 12-months prior to December 2015, while at the same time being able to attend to his mother’s tax and administrative responsibilities.

6. I also take into account that the Applicant enrolled in the Course on 11 September 2014 and census date was 10 October 2014, after which he was able to make an application for re-credit of his FEE-HELP. I accept that his mother’s condition fluctuated and the degree of care she required from the Applicant varied. However, the evidence does not support a finding her condition deteriorated to such a degree that the Applicant, who successfully enrolled in the course in September 2014, found it was not possible to make an application for re-credit prior to the conclusion of the 12-month application period on 20 December 2015.  

7. For these reasons, I do not find it was not possible for the Applicant to make a re-credit application during the relevant period. As the Applicant does not satisfy paragraph 104-25(1)(e) of the Act, his application cannot succeed and the Review Decision will be affirmed.

   DECISION

8. For the reasons stated above, the Review Decision dated 25 October 2022 is affirmed.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of

.................................[Sgd].......................................

Associate

Dated: 18 January 2024

Date of hearing:	5 October 2023
Applicant:	In person
Solicitors for the Respondent:	Ms M Teo, Australian Government Solicitor