Haliem and Secretary, Department of Education
[2024] AATA 14
•12 January 2024
Haliem and Secretary, Department of Education [2024] AATA 14 (12 January 2024)
Division:GENERAL DIVISION
File Number: 2022/9549
Re:Ms Sarah Haliem
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:12 January 2024
Place:Melbourne
The Tribunal sets aside the decision under review, and in substitution finds the Applicant satisfies sections 97.25 and 97.30 of the Higher Education Support Act 2003 and remits the matter to the Provider to re-credit the Applicant’s HECS-HELP balance.
.............................[sgd]...........................................
Ms A E Burke AO, Member
Catchwords
EDUCATION – HECS-HELP – debt remission – whether special circumstances apply – where all 3 criteria must be met – where accepted that circumstances were abnormal, uncommon or unusual and beyond applicant’s control – disputed whether full impact of circumstances was on or after census date – disputed whether circumstances made it impracticable for applicant to complete the requirements for the unit – Tribunal satisfied that special circumstances apply – decision set aside and remitted with direction Applicant found to be entitled to re-credit of HECS-HELP debt
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
Cases
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
Secondary Materials
Higher Education Support (Administration) Guidelines 2022
REASONS FOR DECISION
Ms A E Burke AO, Member
12 January 2024
Ms Sarah Haliem is seeking a review of a decision by Deakin University to uphold an earlier decision not to re-credit her HECS-HELP balance in relation to HECS‑HELP assistance given to her pursuant to section 97.25 of the Higher Education Support Act 2003 (Cth) (the Act), for study in a Bachelor of Laws in Trimester 1, 2022.[1]
[1] Tribunal Documents lodged pursuant to Administrative Appeals Act 1975 (Cth) s 37 (‘T-documents’), T12.2. p 166-167.
Ms Haliem commenced her Bachelor of Laws at Deakin University on a part-time basis in in July 2021 whilst working full time at Medibank Private.[2] In Trimester 1, 2022 Ms Haliem enrolled in 3 units, MLL114 – Criminal Law, MLL119 – Contact A and MLL218 – Criminal Procedure, commencing on 7 March 2022 with a census date of 31 March 2021 (‘the census date’).[3]
[2] Exhibit A1, Applicant ‘Timeline’ dated 9 June 2023, p 1.
[3] T3, p 27; T20, p 230.
Ms Haliem is one of 5 siblings: she has 2 sisters and 2 brothers. As the eldest child in her family, her parents nominated her as executor of their wills. The management of the estate has led to considerable disagreement with one of her sisters, Mariam, which culminated in Mariam filing a claim against Ms Haliem in the Supreme Court of Victoria.[4]
[4] T11.1, p 162-163.
On 11 August 2022, Ms Haliem submitted a request to Deakin University for remission of her HECS-HELP debt in relation to the Trimester 1, 2022 units.[5] On 25 August 2022, Deakin University declined her application and on 24 October 2022 Deakin University affirmed this decision on internal review, stating:
[5] T11, p 161.
Beyond your control
…In your application you also referred to mental and emotional distress, which can be considered a medical condition. Applications based on medical circumstances so grave as to prevent a student from completing the requirements of their enrolled units, would normally be accompanied by contemporaneous medical document. Therefore, it is reasonable to expect you could have also provided a medical document for consideration with this application. Unfortunately, in the absence of documentation, I am not satisfied this circumstance has met this criteria (sic), and cannot be considered a special circumstance for Remission of debt in special circumstances purposes.
A legal matter brought against you as the executor and trustee of an estate would normally be considered abnormal, uncommon or unusual. However, when considering applications for Remission of debt in special circumstances I also need to consider whether the circumstance is also abnormal, uncommon or unusual for the student experiencing them. When considering your application, it became evident that there has been a series of court preceding predating your enrolment in the above study period. I am also uncertain how Hicks, Oakley, Chessell and Williams can comment on events which occurred over 3 months prior to them becoming your legal representatives, however, as you are the defendant in the proceedings, I am satisfied this circumstance has met this criteria (sic)…
[…]
Full impact after the census date
…When considering your Request for internal review application it became evident that your supporting documentation was written by a legal firm who did not commence being your legal representative until 3 months after the initiation of the legal proceedings in March 2022. When considering your statement and supporting letter I am uncertain how they are able to provide an (sic) contemporaneous independent informed account of what you were, or were not, aware of during the month of March 2022, prior to the census date on 31 March 2022.
In the absence of supporting documentation from your original legal firm, advising that they did not inform you of the original motion in the Supreme Court of Victoria, I am not satisfied you were not made aware of your circumstances until after the census date.
Therefore, I am not satisfied your application has been able to demonstrate your circumstances have met this criteria (sic)…
Impracticable test
…When reviewing your progress it became evident that your engagement and progress in your units was consistent before and after the census date. Indicating your ability to complete the unit requirements were not impacted post-census date which is a core requirement of this process.
MLL114 Criminal Law
…For Assessment Task 1 which was due pre-census date you received a mark of 3.13/10 indicating you were already struggling with the unit content prior to the census date. As a result I do not consider a post-census date escalation or change in your circumstances prevented you from completing the requirements of this unit.
MLL119 Contract A
…The reason you provided to the University was that you found this unit ‘too difficult’. As a result of you limited engagement, non-submission of assessment tasks and the contemporaneous withdrawal reason given. I do not consider a post-census date escalation or change in your circumstances prevented you from completing the requirements of this unit. Instead I believe you did not consider yourself academically suited to this unit at that time.
MLL218 Criminal Procedure
…As a spent a total of 16 seconds on your unit site I consider the reason you were not able to successfully complete the requirements of the unit was not due to postcensus date escalation or change in your circumstances. Instead I believe your lack of engagement which was evident before the census date was the reason you did not complete this unit.[6]
[6] T16.2, p 190-192.
On 19 November 2022, Ms Haliem applied to the Tribunal for review of the internal review decision, stating:
I believe the decision made against me has been unfairly made due to a number of reasons. I have been advised I needed to show the review officer that my circumstances escalated after the census date, that they were abnormal and interfered with my ability to study. After the initial outcome letter, I had spoken to the student services team for support on what else I required in terms of documentation and was advised to obtain a letter from my legal representative which shows when my change of circumstances escalated. I obtain this document and also paid a fee of $500 to my lawyer as I genuinely believed my circumstances were unique. To my shock, the outcome review letter stated the legal letter was not sufficient, and in addition, I required another legal letter from my previous law firm and a letter from my current psychologist which outlines the impact the circumstances had on my mental health and ability to study! Had I had known this at the time, I would have been proactive in obtaining those additional documents and now it is too late to apply for a further review and have been advised to lodge an application with you. I hope that by explaining my situation in detail with a third party, that this can be resolved![7]
[7] T1, p 5.
Ms Haliem appeared self-represented by video at the hearing on 30 November 2023 and Mr Adam Cunynghame, solicitor at Sparke Helmore, appeared for the Secretary, Department of Education (the Respondent).
LEGISLATION
The Act governs the provision of financial support to students and the repayment of a person's contributions, or remission, of a HECS-HELP debt in respect of a unit of study in certain circumstances.
A HECS-HELP debt is incurred when the Commonwealth makes a loan to a person and uses the loan amount to make a payment to a higher education provider to discharge the person's liability to pay the student contribution for a unit of study.[8] HECS-HELP debt is taken to have been incurred immediately after the census date for the unit.[9] A higher education provider must re-credit a person's HECS-HELP if:
(a)the person has been enrolled in the unit with the provider; and
(b)the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and
(c)the provider is satisfied that special circumstances apply to the person; and
(d)the person applies in writing to the provider for re-crediting of the HELP balance; and
(e)either:
(i)the application is made before the end of the application period or
(ii)the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.[10]
[8] s 137-5(1).
[9] s 137-5(3).
[10] s 97-25(2).
Under section 97.25 of the Act, where a person has not completed a unit of study they may, as in this matter, apply for remission of a debt which must be granted where the provider is satisfied that special circumstances apply to the person.
‘Special circumstances’ are defined as applying to a person under section 97.30 of the Act if and only if, they:
(a) are beyond the person’s control; and
(b) do not make their full impact on the person until on or after the census date for the unit of study; and
(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
The Higher Education Support (Administration) Guidelines 2022 (the Guidelines) have been made under section 238.10 of the Act. A decision made in respect of special circumstances must, under section 97.30 of the Act, be made in accordance with the Guidelines.
Chapter 3 of the Guidelines addresses the circumstances in which a higher education provider is to be satisfied as to the existence of special circumstances.
Paragraph 3.5.1 of the Guidelines provides that circumstances are beyond a person’s control if a situation occurs which a reasonable person ‘would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible’. Paragraph 3.5.5 provides that the situation must be ‘unusual, uncommon, or abnormal’.
Paragraph 3.10.1 of the Guidelines provides as follows:
A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit or study if the person’s circumstances occur:
(a) before the census date, but worsen after that day; or
(b) before the census date, but the full effect or magnitude does not become apparent until on or after that day; or
(c) on or after the census date.
ISSUE
The issue before the Tribunal is whether special circumstances apply to Ms Haliem’s situation.
CONTENTIONS
Ms Haliem
Ms Haliem contended that between April and June 2022 she was experiencing a ‘nightmarish’ time, which impacted her greatly and led to a significant deterioration in her mental health, leaving her unable to concentrate on her studies. Ms Haliem contended that had she known that things were to escalate to the degree they had, she would have withdrawn prior to the census date or not enrolled altogether.[11]
[11] Exhibit A1, Applicant ‘Timeline’ dated 9 June 2023.
Ms Haliem provided the following timeline of events:[12]
[12] Ibid.
·During the entire period she was:
oworking full time;
odealing with legal proceeding brought by her sister Mariam;
osuffering mental health issues;
oa carer for her sister, Nada, who has an intellectual disability;
oa support person for her aunt, Ms Kandil who arrived in Australia on 01/01/2021; who was diagnosed around June 2021 with cancer, requiring chemotherapy treatment until September 2021 with follow-up appointments with her doctor.
·Final intervention order hearings were to be held on both 7–8 February of 2022 for proceedings brought by the Applicant’s sister Mariam against her aunt, where the Applicant was required as a witness for these proceedings, which were then adjourned until June 2022
·March 2022: discovered she was pregnant with her first child, between April–May 2022 was low on energy and quite nauseous, which was exacerbated by fasting for Ramadan, commencing on 2 April 2022 lasting 30 days
·April 2022: escalation of Supreme Court action, 4 April 2022 notice of appearance was made to the Supreme Court with orders made around 7 April 2022 confirming that the issue would now without a doubt be held in the Supreme Court
·April 2022: advised the Supreme Court action, where she was the defendant could cost her in excess of $10,000 primarily to cover barrister fees, leaving her highly anxious (this money could not be drawn from the estate)
·8 May 2022: her husband had to travel overseas for a period of 3 months to attend to other family issues, leaving her with no other emotional support at home
·16 May 2022: granted loan to cover costs of legal fees
·24 May 2022: advised by her current law firm they could no longer act on her behalf due to a conflict of interest, leaving her to urgently look for new legal representation
·27 May 2022: one of the rental properties under the estates control was broken into requiring her to file a police report and manage the situation
·June 2022 onwards: secured new legal firm to assist with the Supreme Court action
Circumstances beyond a person’s control
Ms Haliem contended her situation was completely beyond her control as her sister had been causing her significant trouble, which culminated in her sister issuing proceedings against her in the Supreme Court.
Ms Haliem was at pains to impress she had been trying to negotiate a resolution to these issues for a considerable period of time and had hoped court proceedings could be averted.[13] Ms Haliem provided evidence of discussion with her lawyers over time to substantiate these claims.
Circumstances that did not make their full impact until on or after the census date
[13] Ibid, p 2.
Ms Haliem contended that her circumstances did not make their full impact until after the census date. Ms Haliem submitted it was an accumulation of issues after the census date that resulted in her deteriorating mental health and inability to concentrate on any studies that resulted in her withdrawing from her units.
Ms Haliem contended she knew her capacity and had anticipated she could manage her studies, her full-time employment and caring duties as she had in the previous trimester.[14] However, Ms Haliem contended, finding she was pregnant, her husband being overseas, ongoing support for her aunt both with her cancer treatment and her own court proceedings, caring for her disabled sister, the realisation that court action in respect of her parents’ estate was inevitable, the need to find new legal representation, the need to secure finances to defend the court action, and the despair at never being able to reconcile with her sister left her incapable of proceeding with her studies after the census date.
[14] Ibid, p 1.
In respect of the Supreme Court proceedings Ms Haliem stated in her oral evidence:
·that whilst she was aware from members in her community her sister had claimed she may seek to sue her, she had hoped this was only talk and a resolution to her sister’s grievances could be found;
·that whilst she knew her sister had filed a motion in the Supreme Court she did not appreciate the full gravity of the issue until the notice of motion was filed, after the census date;
·her original law firm had not kept her informed of what was happening in respect of the proceedings;
·she had always hoped to find a negotiated settlement to the issue, to have an independent executor put in place and so court proceedings could be avoided.
Ms Haliem submitted that the letter of 5 October 2022 from Hicks Oakley Chessell Williams Lawyers provided evidence to support her claim that the extent of the Supreme Court proceedings did not make their full impact until after the census date:
As you are aware our client is the defendant in proceedings that were commenced on 2 March 2022 via an originating motion (OM) filed with the Supreme Court of Victoria.
Ms Haliem was not made aware of these legal proceedings until after 31 March 2022 despite the OM being served on Viclaw Lawyers (Viclaw), her law firm at the time. After the OM was provided to her, she provided detailed and thorough instructions to Viclaw to prepare an affidavit in response. Unfortunately, Viclaw failed to inform her of further critical deadlines and were informed by the Legal Services Board that there may be a potential conflict.
Through no fault of her own, Ms Haliem had no choice but to seek the assistance of another law firm. Ms Haliem formally engaged our office on 6 June 2022 (date of engagement) and on 7 June date of 2022 we filed a Notice of Appearance on her behalf with the Supreme Court of Victoria.
From the date of engagement up until 25 July 2022 Ms Haliem was working with our office to provide instructions and documentation to allow us to respond to the OM. Unfortunately, the file that was handed over to our firm from Viclaw required us to obtain further detailed instructions and documentation from Ms Haliem.
Due to unforeseen circumstances and the mismanagement of her file from Viclaw, it has detrimentally affected our client’s opportunity to study and complete her subjects during Trimester 1, 2022.[15]
[15] T14.1, p 179-180.
Ms Haliem stated in her oral evidence she has experienced ongoing mental and emotional distress for many years and has been seeing a Clinical Psychologist for some time to deal with the effects of significant family conflict.
Ms Haliem submitted her mental health significantly deteriorated when it became abundantly clear there could be no resolution to the dispute with her sister and court proceedings were inevitable. Ms Haliem contended this occurred after the census date and relied upon a letter of 26 April 2023 from Ms Sandra Raponi-Saunders, Clinical Psychologist, to support her contention:
…Ms Haliem presented to my clinic in July 2017, and I have therefore known Ms Haliem for approximately six years. She presented with severe symptoms of clinical depression and anxiety in the context of a relationship dispute between her sister and herself. Ms Haliem’s circumstance has been beyond her control and was not due to her actions or inactions, as her goal has always centred around family reconciliation. The dispute has also included a series of court proceedings, of which were not actioned by Ms Haliem and predated her enrolment at Deakin University. These court matters are ongoing with the next court date yet to be announced. Prior to the Census date, Ms Haliem’s mental condition had worsened, along with ongoing issues arising in relation to this matter (which are mentioned in the following paragraph), and unjustified accusations by her sister, her mental health further worsened after the Census date (thereby meeting Criteria (b) as above). Ms Haliem’s psychological distress exacerbated as the relationship between Ms Haliem and her sister no longer appeared to be reconcilable.
Ms Haliem’s sister provided Ms Haliem with unjustified accusations in relation to the ongoing legal proceedings prior to the Census date, on the grounds that Ms Haliem was required to respond within a period of time, and if she did not, Ms Haliem’s sister would most likely proceed further. Thereafter, the Legal firm representing Ms Haliem was deemed unethical in April 2022 due to a conflict of interest and thereby placed on hold in May 2022. Consequently Ms Haliem was required to seek new legal representation. She reported that it was in June 2022 that her current Law firm, Hicks, Oakley, Chessel and Williams agreed to represent her. During this period of time Ms Haliem was unable to respond to the accusations presented by her sister, with a Notice of Appearance dated 4th April 2022 subsequently being to Ms Haliem to appear in the Supreme Court of Victoria, Melbourne. Ms Haliem’s distress escalated during this time, being after the Census date, as she became fully aware of the severity of the circumstance.[16]
[16] Exhibit A2, p 2-3.
Circumstances that make it impracticable for the person to complete the requirements
Ms Haliem submitted it was the accumulation of all her circumstances which made it impracticable for her to complete the requirements of the units. Ms Haliem contended the units were not beyond her capability, but she had no capacity to engage with the work requirements as she was overwhelmed by a myriad of factors in her life. Ms Haliem relied upon her original reply to the internal review:
Why I believe I meet this criteria (sic): My previous law firm did not promptly keep me up to date when it had come to court proceedings. After being made aware on or after census date, from there it only escalated with it's (sic) full impact being during May. Between May and June were a difficult transition period between searching for a new law firm and starting with a new law firm. The reasons for having withdrawn from MLL119 was not because it was difficult in itself, the main driving factor was my personal circumstances that created an impossible environment in difficulty with continuation of studies.
In the outcome letter states (sic) I have accessed the unit site throughout the period, I would like to stress, yes I may have accessed the unit site at brief moments, this did not mean my circumstances allowed me to focus on assessment tasks due. So far, in my trimester 2 studies, I have been able to submit all assessment tasks and now studying for exams coming in the next week. I feel I have been greatly disadvantaged in last semester and pray that you can see the same as I have requested my solicitor to write a supporting letter which has come at a cost. I would not have gone to this extent if I believed my circumstances during trimester 1 2022 were not unique.[17]
[17] T14, p 177.
Ms Haliem contended Ms Raponi-Saunders’ letter also supported her contention:
Impracticability to complete requirements of the unit in the relevant study period
The letter from Deakin University states that Ms Haliem’s engagement and progress in her units was consistent before and after the Census date; that is Ms Haliem was not able to submit assessments tasks and her engagement within the units was limited. It is in the writers (sic) opinion that the ongoing and unremitting nature of Ms Haliem’s circumstances are considered uncommon and unusual. Ms Haliem was aware of the increasing severity of her psychological distress prior to the Census date of the 31 March 2022, and as noted was already struggling with the mentioned units. However the magnitude of the effects further worsened after the Census date, due to circumstances beyond her control. Seeking new legal representation, being sued personally by her sister and a Notice of Appearance to attend at the Supreme Court of Victoria, more than not created a deterioration of symptoms and increase of psychological distress. Consequently, these circumstances would most likely have made it impracticable for Ms Haliem to progress and engage in the completion of the units.
Notably, Ms Haliem was able to commence and complete 3 units during Trimester 2, 2021. Ms Haliem had demonstrated that she was capable of her completing her studies, and was not aware that her circumstances were likely to worsen when she enrolled in Trimester 1, 2022. It is in the writer’s opinion that Ms Haliem did not find the units “too difficult” but moreso (sic) that the escalation in her circumstances (pre Census date and further worsening after the Census date) and subsequent increased psychological distress prevented her from completing the requirements of the three units.[18]
[18] Exhibit A2, p 3.
Ms Haliem contended that her circumstances were so overwhelming she could not concentrate and therefore it was impracticable for her to complete the requirements of the course.
Secretary, Department of Education
The Respondent contended that the Tribunal could not be satisfied that special circumstances applied to Ms Haliem as she had not met all the conditions set out in section 97.30(1) of the Act.
Whilst the Respondent accepted Ms Haliem had demonstrated that her circumstances were abnormal, uncommon or unusual and beyond her control, the Respondent contended Ms Haliem had not demonstrated her circumstances had made their full impact on or after the census dates for the units; nor how they made it impracticable for her to complete the requirements of the units.
Circumstances beyond a person’s control
The Respondent accepted Ms Haliem met the criteria under section 97.30(1)(a) of the Act, as her status as a defendant in legal proceedings, brought against her personally and as the executor and trustee of an estate which commenced on 2 March 2022 in the Supreme Court were beyond her control. The Respondent accepted Ms Haliem’s involvement in these proceedings was abnormal, uncommon or unusual for the purpose of section 12 of the Guidelines.[19]
Circumstances that did not make their full impact until on or after the census date
[19] Respondent Statement of Facts, Issues and Contentions dated 25 August 2023 (‘RSFIC’) at [5.2]-[5.3].
The Respondent contended on the evidence before the Tribunal it should find for the purpose of section 97.30(1)(b) of the Act that the full impact of Ms Haliem’s special circumstances including the legal proceedings and her mental health issues occurred before the census date.[20]
[20] Ibid, at [5.15].
The Respondent contended the Tribunal should find, as the decision-maker had, that Ms Haliem was well aware of the Supreme Court proceeding well before the census date.[21]
[21] Ibid, at [5.10].
The Respondent submitted:[22]
·Ms Haliem had discussed her legal proceedings with her previous legal representatives before the notice of appearance was filed on 4 April 2022.
·Ms Haliem also wrote to her previous legal representatives, by email on 27 January 2022, that she had been recently made aware that her sister was intending to sue her with respect to the management of two properties, presumably subject of the legal dispute.
[22] Ibid, at [5.9].
The Respondent submitted Ms Haliem had not demonstrated how her circumstances worsened after the census date following the filing of the Supreme Court notice on 4 April 2022 and contended the Tribunal should find as the original decision-maker had on 25 August 2022:
The Supreme Court document, dated 4 April 2022, does not determine an impact on your studies. This document does not confirm when you were first aware of the court case or how it impacted your studies after the census date. You have not provided any documentation to support your personal statement or determine your special circumstances were the reason you were unsuccessful in the above units.[23]
[23] T12.2, p 166.
The Respondent submitted Ms Haliem had not clearly identified how her circumstances escalated or worsened after the census date following the filing of the notice of appearance on 4 April 2022. Rather, the Respondent submitted Ms Haliem had made reference to her husband travelling overseas, her property being subjected to a robbery, the anxiety associated with her litigation and her seeking of new legal representation due to a conflict of interest.[24] The Respondent contended this was not sufficient to meet the requirements of the Act and the Tribunal should also concur with the internal review determination of 24 October 2022:
…When considering your Request for internal review application it became evident that your supporting documentation was written by a legal firm who did not commence being your legal representative until 3 months after the initiation of the legal proceedings in March 2022. When considering your statement and supporting letter I am uncertain how they are able to provide an (sic) contemporaneous independent informed account of what you were, or were not, aware of during the month of March 2022, prior to the census date on 31 March 2022.
In the absence of supporting documentation from your original legal firm, advising that they did not inform you of the original motion in the Supreme Court of Victoria, I am not satisfied you were not made aware of your circumstances until after the census date.
Therefore, I am not satisfied your application has been able to demonstrate your circumstances have met this criteria (sic).[25]
[24] RSFIC, at [5.11].
[25] T16.2, p 191.
The Respondent contended the Tribunal should find that there was no sufficient supporting evidence that Ms Haliem’s mental health condition escalated after the census date.
The Respondent submitted Ms Haliem’s psychologist Ms Raponi-Saunders’ opinion that Ms Haliem’s psychological distress was exacerbated as her relationship between her sister no longer appeared reconcilable was ‘entirely deficient with respect to articulating how Ms Haliem’s condition escalated after the census date’.[26]
[26] RSFIC, at [5.13].
The Respondent submitted little weight should be placed on Ms Raponi-Saunders’ report of 26 April 2023 as it was based on self-reporting, was not contemporaneous, and did not articulate how the supposed escalation in Ms Haliem’s mental health condition impacted on her ability to study.[27]
[27] Ibid, at [5.14].
The Respondent contended on the evidence the Tribunal should find that the full impact of the legal proceedings on Ms Haliem occurred before the census date.[28]
[28] Ibid, at [5.15].
Circumstances that make it impracticable for the person to complete the requirements
In their written submissions the Respondent submitted section 14(1)(a) of the Guidelines relevantly provides that a higher education provider will be satisfied that a person’s circumstances made it impracticable for the person to complete the requirements for a unit of study if the person undertook, or was to undertake, the unit in 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. Other relevant circumstances under section 14(1) of the Guidelines which make it impracticable for the person to complete the requirements for a unit of study also include family or personal circumstances (s 14(1)(b)), employment related circumstances (s 14(1)(c)), or course related circumstances (s 14(1)(d)). Subsection 14(2) provides that the requirements for a unit of study include the requirement for the person to complete the required assessable work.[29]
[29] Ibid, at [5.16].
The Respondent submitted the Tribunal has provided guidance as to the circumstances that will make it impracticable for a person to complete the requirements of a unit. The meaning of the word 'impracticable' was discussed in Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 (‘Zabaneh’) at [45], as follows:
As unfortunate as it is that Mr Zabaneh does not enjoy good health and that his parents have died, we are not satisfied that his circumstances were such that it was impracticable for him to complete the requirements of each unit within the relevant semester as required by s 104-30(c).27 "Impracticable" means "not able to be done" [Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers]. On the evidence, it might have been difficult for him to do so but the circumstances on which Mr Zabaheh relies were not such that completion of the requirements of the four units of study was not able to be done.
(emphasis added)
The Respondent submitted the Tribunal has subsequently distinguished circumstances making it “difficult” for an applicant to complete the requirements for a unit of study, and circumstances making it “impractical”.[30] In Georgiou and Secretary, Department of Education and Training [2019] AATA 170 (‘Georgiou’), the Tribunal concluded at [20]:
I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. However, while the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of the Units, it is insufficient to establish that the circumstances were such that it was impracticable for this to be done.
(emphasis in original)
[30] Ibid, at [5.18].
The Respondent contended Ms Haliem ‘has not articulated how her medical conditions, court proceedings, or familial circumstances made it impracticable as distinct from difficult for her to complete her courses during Trimester 1, 2022; nor does the evidence, including that provided by Ms Haliem to the Tribunal, support a finding in this regard’.[31]
[31] Ibid, at [5.20].
The Respondent submitted Ms Raponi-Saunders’ evidence suggested that ‘the legal proceedings created a deterioration of Ms Haliem’s symptoms and increase of psychological distress’. However, the Respondent further submitted Ms Raponi-Saunders’ letter was ‘unclear’ on how Ms Haliem’s condition deteriorated ‘noting that her legal proceedings had been ongoing’, and she had been receiving ‘ongoing treatment from Ms Raponi-Saunders since at least 2017 for severe symptoms of clinical depression and anxiety’.[32]
[32] Ibid.
The Respondent contended in this regard, Ms Haliem’s evidence was not sufficient to demonstrate that her ‘medical conditions "changed to such an extent that he or she is unable to continue studying" for the purpose of s 14(1)(a) of the Guidelines, also noting that she continued to study in Trimester 2, 2022 being after the census date’.[33]
[33] Ibid.
The Respondent submitted the internal reviewer placed significant weight on Ms Haliem’s academic performance before and after the census date for the courses.[34] The Respondent noted the reviewer found:
Your Student Connect record states you withdrew from MLL119 because it was difficult. Unfortunately, a unit being difficult does not meet the criteria for Remission of debt in special circumstances. You did not complete the Week 4 module (prior to census date) or modules 5 onwards. As you did not engage in MLL119 after the census date, coupled with your reason for withdrawing, I am unsure how your circumstances impacted your ability to complete the requirements of this unit.[35]
[34] Ibid, at [5.18].
[35] T12.1, p 166.
The Respondent contended Ms Haliem’s inability to successfully complete the requirements of her units was not due to post-census date escalation or change in her circumstances but was rather due to her overall lack of engagement in the units:
When reviewing your progress it became evident that your engagement and progress in your units was consistent before and after the census date. Indicating your ability to complete the unit requirements were (sic) not impacted post-census date which is a core requirement of this process.[36]
[36] T16.2, p 191.
Further, the Respondent contended that as Ms Haliem has subsequently repeated the units in Trimester 2 and failed them again, this further supported the conclusion that it was not her circumstances which made it impracticable for her to complete the course requirements, ‘but rather her overall ability to complete the requirements of those units’.[37]
[37] RSFIC, at [5.21].
CONSIDERATION
Pursuant to section 97.30 of the Act and Chapter 3 of the Guidelines, special circumstances only apply to a person where the circumstances are: beyond a person's control; and make their full impact on or after the census date; and make it impracticable for the person to complete the requirements for the unit of study during the relevant study period.
The conditions established in section 97.30 of the Act are cumulative, and all of those conditions must be met in order for the Tribunal to be satisfied that special circumstances apply.
The Tribunal found, based on the evidence, that Ms Haliem withdrew from unit MLL119 on 26 April 2022 and units MLL114 and MLL218 on 24 May 2022 after the census date of 31 March 2022. The Tribunal therefore finds that Ms Haliem has a HECS-HELP debt.
As the Tribunal determined that Ms Haliem has a HECS-HELP debt, it next had to consider if the debt could be remitted in accordance with section 97.30 of the Act, determining if her circumstances:
(a)were beyond her control; and
(b)made their full impact on or after the census dates for the Units; and
(c)made it impracticable for her to complete the requirements of the Units.
The Tribunal concurred with the parties that Ms Haliem’s circumstances were abnormal, uncommon and unusual and were beyond her control. Whilst it is a true adage that where there is a will there is a family dispute, very few disputes escalate to the point where one family member initiates proceedings in the Supreme Court. Ms Haliem’s evidence clearly demonstrated she had not initiated the legal proceedings, indeed it appeared she had been attempting to negotiate an acceptable outcome to the parties but to no avail. Ms Haliem’s legal issues alone made her situation uncommon and beyond her control.
The Tribunal found on the evidence that the full impact of Ms Haliem’s circumstances was made after the census date. The Tribunal did not concur with the Respondent that as Ms Haliem was aware of the Supreme Court proceeding before the census date, their full impact was not made after the census date.
The Tribunal found on the evidence it was not until Ms Haliem received the notice of appearance on 4 April 2022 that the magnitude of the situation (that is, the reality of the proceeding going ahead) made its full impact. The Tribunal found on the evidence Ms Haliem had hoped the dispute with her sister could be resolved without proceeding to a costly, protracted, and emotionally-draining court dispute.
The Tribunal found Ms Haliem’s original lawyers had failed to keep her abreast of the court proceedings, as evidenced by the letter to them from her sister’s lawyers objecting to any extension of time to file material:[38]
We note that we first wrote to you raising concerns in relation to the estate of Amal Haliem on 21 April 2021. Apart from one letter on 5 July 2021, there has been no substantive response to the concerns raised by our client, no explanation for your client’s actions including those alleged to be in breach of her fiduciary duties, and no response to our clients’ requests for information and documents to which she is entitled. Your client has been on notice of the issues in the present proceeding since April 2021, or at the latest, 29 March 2022 when the application was served. There has also been no explanation for the delay in providing this information.
Accordingly, no extension will be entertained by our client. We intend to raise your client’s failure to comply with the orders at the forthcoming directions hearing and reserve our right to produce this letter to the Court.
[38] Exhibit A1, Letter from Aitken Partners to Viclaw Lawyers dated 24 May 2022.
The Tribunal accepted Ms Haliem’s evidence that she was overwhelmed by the proceedings and all the associated drama. The Tribunal accepted that the requirement to find the funds for the legal fees, the need to locate new legal representation and being personally sued by her sister were overwhelming and made their full impact upon the Applicant after the census date. The Tribunal placed significant weight upon the evidence of Ms Haliem’s legal representatives Hicks Oakley Chessell Williams Lawyers.[39]
[39] T14.1, p 179-180.
The Tribunal found on the evidence it was the convergence of many circumstances that made their full impact on Ms Haliem after the census date which made it impracticable for her to complete her units. The Tribunal relied upon the evidence of Ms Raponi-Saunders, which outlined the emotional toll the situation was having on Ms Haliem at the time.[40] The Tribunal considered that Ms Haliem’s uncommon circumstances impacted her capacity to undertake the units and her lack of engagement with her units demonstrated her inability to concentrate and to meet the units’ requirements.
[40] Exhibit A2.
The Tribunal relied upon Deakin University’s internal assessment notes dated 12 August 2022 which demonstrated Ms Haliem was struggling because of the convergence of her circumstances to undertake her studies:
Test 1 and 2 passed - court proceedings beyond control, date of notification letter after census Unclear if this was an ongoing matter that got escalated to Supreme court
Test 3 failed - no supporting evidence provided for impact on ability to study. Would need support from a doctor or prohaps (sic) a legal professional involved in the case.
Cloud Deakin engagement
Very low engagement with MLL218 unit site
Some engagement with MLL114 but appears to have failed an assignment that was submitted before special circumstances
Good engagement with MLL119 up until week 4. prior to census date
Previous app refers to carer duties for sister
student listed on Callista that she withdrew from MLL119 because it was too difficult[41]
[41] T15, p 182.
The Tribunal found that together, Ms Haliem’s family and personal circumstances and the deterioration in her mental health condition associated with her numerous stressors (as described above at [21]) made it impracticable, not merely difficult, to complete the requirements of the units. The Tribunal noting the guidance provided in the matters of Zabaneh and Georgiou accepted Ms Haliem’s circumstances were such that the units were not able to be done.
The Tribunal made no assessment of whether Ms Haliem had the academic ability to complete the requirements of the units, as that is not part of the test for special circumstances. The Tribunal presumes Deakin University determined Ms Haliem had the academic ability to undertake a Bachelor of Laws, as they offered her a position in the course and the opportunity to re-enrol in the units, subject to certain academic conditions.[42]
[42] T10.5, p 152-153.
The Tribunal notes this determination has no impact on Ms Haliem’s academic results for the units in question. A finding for her does not mean she will be awarded a result of ‘withdrawn not failed’. That is for Deakin University to assess on its academic progress criteria.
The Tribunal found the evidence indicated Ms Haliem’s circumstances were such that completion of the requirements of the three units of study was not able to be done.
The Tribunal was therefore satisfied that Ms Haliem’s circumstances amounted to special circumstances, as required under section 97.30 of the Act, in order for Ms Haliem to have her HECS-HELP debt with respect to the Trimester 1, 2022 units in the Bachelor of Laws at Deakin University remitted.
DECISION
The Tribunal sets aside the decision under review, and in substitution finds the Applicant satisfies sections 97.25 and 97.30 of the Act and remits the matter to the Provider to re-credit the Applicant’s HECS-HELP balance.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke
.................................[sgd].......................................
Associate
Dated: 12 January 2024
Date(s) of hearing: 30 November 2023 Applicant: Self-Represented Advocate for the Respondent: Mr Adam Cunynghame Solicitors for the Respondent: Sparke Helmore
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