Haque and Secretary, Department of Education, Skills and Employment
[2021] AATA 4406
•10 November 2021
Haque and Secretary, Department of Education, Skills and Employment [2021] AATA 4406 (10 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8018
Re:Ahsan Ul Haque
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Senior Member M J McGrowdie
Date:10 November 2021
Date of written reasons: 29 November 2021
Place:Sydney
For the reasons given orally at the conclusion of the hearing of this matter on 10 November 2021, the Tribunal affirms the decision under review.
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Senior Member M J McGrowdie
CATCHWORDS
Applicant’s Application to withdraw without penalty from a unit of study subsequent to the University’s Census date – requirement for ‘special circumstances’ to exist such that the Tribunal could be satisfied that it was impracticable for the Applicant to complete the unit of study - whether the Applicant could withdraw from the unit of study without penalty- decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth): s 36-20(1)(d), 36-21(1)-(2)
CASES
Montenegro v Secretary, Department of Education [2020] FCAFC 2010
Zabaneh v Secretary, Department of Education and Training [2016] AATA 569
Bow v Secretary, Department of Education [2020] AATA 114SECONDARY MATERIALS
Administration Guidelines 2012 (Cth): Chapter 3.5, 3.10 and 3.15
REASONS FOR DECISION
Senior Member M J McGrowdie
29 November 2021
Mr Ahsan Haque (‘the Applicant’) was enrolled in a course of study at the University of New South Wales in 2020. He had enrolled in three units of study in Term 1 in his first year of a Bachelor of Engineering degree at the University of New South Wales (‘the University’). From the way the evidence unfolded, Mr Haque didn't participate in any of those units. He withdrew from two of the three units online by the census date. This he could do without anything further required to discontinue the units without penalty. The census date is the date before which a student can withdraw from a unit of study without financial or academic penalty.
It was the Applicant’s understanding that one couldn't withdraw online from all subject units of a course, and that one subject unit had to remain. It was then possible for the Applicant to make an application in writing to the University for a withdrawal from the remaining unit, and therefore the course for the semester. Mr Haque made application to withdraw from the last and remaining unit on 10 May 2020. On 2 June 2020 his request was declined by the University, and that declinature was affirmed on review on 9 November 2020.
An appeal is available from that review decision to have his application for withdrawal without financial penalty considered by the Tribunal. In order to withdraw from that final unit and the course without penalty, it is necessary for the Applicant to demonstrate that special circumstances existed.
The issue to be determined is whether there are special circumstances which existed at the relevant time to enable the Applicant to withdraw from the only remaining unit of study in his course for the semester without penalty.
Under the Higher Education Support Act 2003 (Cth) (‘the Act’), a person may withdraw from a unit of study on or after the census date provided that certain matters are satisfied. Section 36-20(1)(d) of the Act requires that the provider be satisfied that special circumstances apply to the person.
Section 36-21(1) of the Act provides that for the purposes of section 36-20(1)(d), special circumstances apply to the person if, and only if the circumstances:
(a)are beyond the persons control, and
(b)did 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 during the period which the person undertook or was to undertake the unit.
In the present matter, the unit end date was 15 May 2020 and the Applicant made his application to the university on 10 May 2020. There are Administration Guidelines 2012 (Cth) (‘the Guidelines’) which are also applicable (Higher Education Support Act 2003 (Cth) s 36-21(2)). Any decision must be made ‘in accordance with’ the Administration Guidelines 2012 (Cth) (Montenegro v Secretary, Department of Education [2020] FCAFC 2010)).
Going to the Guidelines, clarification is provided in relation to circumstances which will satisfy a decision maker that special circumstances apply to a person that:
(a) are beyond the person’s control in relation to the unit (paragraph 36-21(1)(a) of the Act);
(b) do not make their full impact on the person until on or after the census date
for the unit (paragraph 36-21(1)(b) of the Act; and
(c)make it impractical for the person to complete the unit . (paragraph 36-21(1)(c) of the Act.
The Respondent does not take issue that the Applicant’s circumstances were beyond the applicant’s control or that they did not make their full impact on the Applicant until after the census date. The Respondent, however, has submitted that the evidence is not sufficient for the Tribunal to be satisfied that it was impracticable for the Applicant to complete the requirements of the unit during the period for the unit.
Chapter 3 of the Guidelines make reference to various circumstances where it could be concluded that it would be impracticable for the person to complete the requirements for the unit. There is reference to medical circumstances, family/personal circumstances, employment related circumstances, and course related circumstances.
According to Chapter 3.15 of the Guidelines, a person may be unable to complete the requirements of a unit if the person is unable to undertake the necessary private study, or complete the required assessment work, or sit the required examinations.
With regard to 'family/personal circumstances', there is reference in the Guidelines to death, or severe medical problems, or unforeseen family financial difficulties, such that it is unreasonable to expect the person to continue studies.
With regard to 'employment related circumstances' reference is made to the person’s ‘employment status or arrangements having changed so that the person is unable to continue his or her studies, and the change was beyond the person’s control’.
The Applicant gave evidence that he worked as a contract interpreter, with a proportion of his work being undertaken overseas. He also did work locally. He was in Nauru in February 2020 and returned to Australia at the time of the emerging COVID-19 pandemic. Although it was not mandatory for him to do so, he thought it best that he went into two weeks isolation on his return to Australia because of COVID-19. As a result of COVID-19, his work as an interpreter suffered, as did his income. However, he applied to the Australia Government for the JobKeeper payment which was subsequently granted to him as soon as available.
The Respondent has said that whilst it might be the case that the Applicant did suffer some financial difficulties during this period, he did get JobKeeper which provided him with income support. Apart from the interpreting work, the Applicant would sometimes drive an Uber car on the weekend but because of COVID-19 that was restricted as well. In terms of his family circumstance, the Applicant experienced marital problems with his wife. At the time they had a young child, three or four years of age. The Applicant separated from his wife on 1 April 2020, about two weeks after the census date. They continued to reside together until 10 June 2020, which was after the end date for the course. The Applicant said he had considerable responsibility for looking after his son during that period and now has primary custody of the child. In short, the Applicant says that he was not in a good mental state to be able to attend to the completion of his course. However, he had not engaged in the course at all from the time of its commencement up to the census date and beyond.
The Applicant made a Statutory Declaration on the 13 April 2021 where he sets out the various matters earlier referred to, and also refers to an unpleasant custody battle with his wife in relation to which there was little detail. He is now waiting for a divorce to go through.
There was also a supporting statement made by Mr Taufeeq Ahmed, a community radio presenter and correspondent, supporting the Applicant's submission that the Applicant was suffering from the stressors and circumstances that I have referred to.
There is email correspondence between the Applicant and the University which is contained in the ‘T-documents’. The Applicant gave oral evidence at the hearing and was cross-examined.
The Respondent has submitted that whilst the Applicant may have suffered from stressors, the evidence is insufficient for the Tribunal to be satisfied that it was impracticable because of those stressors and circumstances for him to complete the unit of study particularly when he had not actively participated or engaged in the unit from the time of the commencement of the unit at the start of that semester.
In Zabaneh v Secretary, Department of Education and Training [2016] AATA 569, the Tribunal determined that 'impracticable' means “not able to be done” and that experiencing difficulty will not satisfy this condition. In Bow v Secretary,Department of Education [2020] AATA 114, reference was made to the question as to whether an Applicant's circumstances made it impracticable to complete a course of study was ‘a high bar’. Whilst one might be sympathetic to the difficulties which the Applicant experienced in the early part of 2020, there is insufficient connection between those difficulties and the Applicant being unable to complete the unit.
Without being anyway critical of the Applicant, it appears that, for one reason or another, he did not embark upon his studies at all in Term 1 in 2020, either before or after the census date. To his credit, the Applicant has now resumed his studies and is a good way through his degree.
For the reasons given the decision under review is affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie
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Associate
Dated: 29 November 2021
Date of hearing: 10 November 2021 Applicant: Mr Ahsan Haque Solicitors for the Respondent: Ms Sarah Hardie
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