HONEST MADZIVA and SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, CLIMATE CHANGE, SCIENCE, RESEARCH AND TERTIARY EDUCATION
[2013] AATA 452
•2 July 2013
[2013] AATA 452
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0402
Re
HONEST MADZIVA
APPLICANT
And
SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, CLIMATE CHANGE, SCIENCE, RESEARCH AND TERTIARY EDUCATION
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 2 July 2013 Place Brisbane The Tribunal affirms the decision under review.
...................[Sgd].....................................................
Ms Lee Cross, District Registrar
CATCHWORDS
HIGHER EDUCATION – Student assistance – FEE-HELP – Withdrawal from course – Application for re-credit of debt – Period for valid application – Possible for application to have been made – No special circumstances – Decision under review affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 104-25, 104-30CASES
Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 824Juresic and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2013] AATA 338
REASONS FOR DECISION
Dr M Denovan, Member
INTRODUCTION
In December 2010 Dr Honest Madziva enrolled in three units of study at University of Queensland (through Open Universities Australia) which were to be undertaken in the first half of 2011. Dr Madziva was unable to complete those units of study because after the first week of the study commencement date he left Australia and went to Zimbabwe for several months to help care for his mother who was ill. Dr Madziva applied to Open Universities Australia (OUA) for FEE-HELP assistance in relation to those units. His application for re-credit was denied because, according to the respondent, Dr Madziva did not make his application within the required time frame set out in the legislation. Dr Madziva claims he made an application within time by telephone and that he was assured his withdrawal had been effected. He argues that he should not be disadvantaged by the incorrect information given to him by an OUA staffer.
BACKGROUND
On 20 December 2010, Dr Madziva enrolled on-line on the OUA website in three units of study. On the same day he submitted a request for FEE-HELP.
The study period for these units commenced on 28 February 2011 and ended on 5 June 2011.
Dr Madziva flew to Zimbabwe on 4 March 2011.
The census date for the enrolled units was 24 March 2011.
On 13 August 2012, Dr Madziva submitted his application for re-credit of his FEE-HELP balance. OUA rejected Dr Madziva’s application on 20 September 2012, and reconsidered and affirmed that decision on 19 November 2012.
Dr Madziva applied to this Tribunal for review of the decision on 24 January 2013.
LEGISLATION AND ISSUES
The legislation relevant to this application is contained in the Higher Education Support Act 2003 (Cth) (“the Act”). The Act sets up a scheme which allows re-credit of FEE-HELP debt in certain circumstances. These circumstances are known as ‘threshold criteria’.[1] Relevant to this application, ss 104-25(2)(c), (d) and (e) provide:
[1] See s 104-25(2) of the Act.
(2) *Open Universities Australia must, on the *Secretary’s behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person has received for a unit of study if:
…
(c) Open Universities Australia is satisfied that special circumstances apply to the person (see section 104‑30); and
(d) the person applies in writing to Open Universities Australia for re‑crediting of the FEE‑HELP balance; and
(e) either:
(i) the application is made before the end of the application period under section 104‑35; or
(ii) Open Universities Australia 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.
Applications for re-credit must be received by OUA within 12 months of the date from the date that withdrawal from the study has taken effect.[2] If no withdrawal occurred, the application must reach OUA within 12 months from the last day of the study period in which the original enrolment took place.[3]
[2] See s 104-35(1A) of the Act.
[3] See s 104-35(2) of the Act.
To satisfy the legislative requirements for “special circumstances” in s 104-25(2)(c) of the Act, s 104-30(3) provides 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 units of study in question, and
(c) make it impractical for the person to complete the requirements of the units during the period during which the person was to undertake the units.
The Respondent submitted that I should consider s 104-25(2)(e) of the Act prior to turning my mind to whether s 104-25(2)(c) is satisfied. This is because the special circumstances Dr Madziva seeks to rely on require detailed consideration about the circumstances of his application for withdrawal from the study units and re-credit of his FEE-HELP balance. Mr Maundrell, for the respondent, contends that if I find that Dr Madziva does not satisfy s 104-25(2)(c) then there is no need to consider whether special circumstances apply.
I have to decide:
(1)whether Dr Madziva applied for re-credit of the FEE-HELP before the end of the application period and, if not, whether it was possible for Dr Madziva to make an application before the end of the application period for the units; and, if so
(2)whether there are special circumstances that apply in this case which allow the debt to be re-credited to Dr Madziva’s FEE-HELP balance.
TRIBUNAL’S FINDING
Did Dr Madziva make an application before the end of the application period or was it not possible for Dr Madziva to make an application before the end of the application period?
It is not in dispute that the first time Dr Madziva applied for re-credit of his FEE-HELP balance in writing was on 13 August 2012. Nor is it disputed that that was after the end of the application period, which expired on 5 June 2012. Dr Madziva seeks to rely on notification of his withdrawal he claims to have given OUA by phone sometime in the two weeks preceding his departure for Zimbabwe in March 2010. He claims that during this phone call the OUA staffer offered to effect his withdrawal on his behalf.[4]
[4] See Exhibit 1, T-document 5, pp. 12-15, esp. p. 15.
OUA conducted a search on IPFX for a record of telephone calls received from telephone numbers contained in Dr Madziva’s personal details. The search found no record of OUA having received a telephone call from those numbers between 1 January 2011 and 31 December 2011.[5]
[5] See Exhibit 3, Annexure J.
Dr Madziva is uncertain what telephone he rang OUA from. He said he had more than one phone and that he may have rung from Skype, net phone or from his work phone. Dr Madziva was unable to produce any telephone records to prove he rang OUA in the two weeks prior to leaving for Zimbabwe. He claims OPTUS has denied him copies of his statements because he is no longer a customer, and his employer is taking a long time to check the phone records and regards the request for phone records as “very unusual”.
Telephone records showing a call from Dr Madziva’s telephone to OUA during the period in question would have been useful evidence in support of his claim that he rang OUA; however, I agree with Dr Madziva’s contention that the absence of such records does not prove that he did not call. He claims that his mobile phone at the time was pre-paid and did not transmit a caller ID. Mr John Fong, Director of Student Administration Services, admitted when questioned during the hearing that not all phone calls to OUA have a caller ID recorded.
Dr Madziva claims that the OUA staffer did a security check and confirmed his personal details prior to effecting the withdrawal. Mr Fong told the Tribunal that when students’ records are accessed a permanent record is made by the computer regardless of whether the OUA staffer makes any notation in the student’s computer file. A copy of the dates Dr Madziva’s file had been accessed by OUA staff is included in Annexures O and P of Exhibit 3. That record shows that the only time an OUA staffer accessed Dr Madziva’s files in 2010 was on 20 and 21 December 2010. Significantly, the records indicate that there was no access of Dr Madziva’s file at any time in 2011.
I accept Mr Fong’s evidence that if an OUA officer checked and confirmed Dr Madziva’s personal details that a record on his file would be present. I can only conclude, therefore, that Dr Madziva is mistaken in his believe that an OUA staffer accessed his computer records in the two weeks prior to his departure to Zimbabwe in March 2011.
Even if Dr Madziva had been able to convince me that he had been misled into believing that his withdrawal had been effected by an OUA staffer when he spoke to them by phone, he would not meet the requirement of the legislation for re-credit of his FEE-HELP balance because s 104-25(2)(d) of the Act requires that the application for re‑crediting of the FEE-HELP balance be made “in writing”.
It is not possible to withdraw from units of study or to apply for re-credit of a FEE-HELP balance by telephone. The procedures that must be followed to effect withdrawal from a study course and the application for re-credit of FEE-HELP are set out in the Open Universities Handbook (“the Handbook”).[6] The first time Dr Madziva applied in writing was on 13 August 2013. That date was after the application period. For the application period to be waived, Dr Madziva would have to show that it was not possible for the application to be made before the end of that period.[7]
[6] See Exhibit 4, esp. pp. 23 and 30.
[7] See s 104-25(2)(e)(ii) of the Act.
Dr Madziva told me that he did not often have Internet access in Zimbabwe. Dr Madziva returned to Australia many months prior to the end of the application period. He accepts that it was certainly physically possible for him to make an application in writing before the end of the application period on 5 June 2012.
I understand the gist of Dr Madziva’s argument is that until he received his tax return in 2012, which included particulars of his FEE-HELP debt, it was not possible for him to realise there was a need for him to apply in writing because he was harbouring a misguided belief that an application in writing had already been lodged on his behalf. Accordingly, he contends, that under the special circumstances he was in, it was impossible for him to know there was a need to make an application in writing. The respondent argues that “possible” should be given its plain and ordinary meaning. Mr Maundrell told me that in previous matters before the Tribunal, which were required to consider if it was possible to make an application, the question that has been asked is whether it was “capable of being done”.[8]
[8] See Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 824 at [25] and Juresic and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2013] AATA 338.
I agree that this is the appropriate test. The legislative test of whether something is possible must surely be an objective one, not subjective. Dr Madziva was certainly capable of applying in writing within the required time frame; he was present in Australia for many months prior to the deadline and had access to the Internet and the regular post during that time.
Although Dr Madziva may have been mentally distracted by concern for his ill mother around the time he withdrew from the 2011 courses, Dr Madziva was not new to the OUA system. Dr Madziva should have been familiar with the correct procedure for withdrawing from units. In his written statement he claims that was the case:[9]
Having been in the Australian Higher Education system for 13 years, 9 of those as a course coordinator, I am well aware of the Academic policies and procedures regarding withdrawals.
[9] See Exhibit 2.
When he completed a request for FEE-HELP on 20 December 2010,[10] Dr Madziva declared that he had read the FEE-HELP information booklet and was aware of his obligations.
[10] See Exhibit 1, T-document 3, pp. 7-9.
Dr Madziva said that the reason he rang OUA rather than follow the procedures set out in the Handbook was because he relied on the information on the OUA website, which advises students considering withdrawal that they may incur academic and financial penalty and suggests students contact an OUA Student Advisor to discuss options.[11]
[11] See Exhibit 2.
The website does not suggest that a withdrawal from study units, or application for re‑credit of FEE-HELP, can be made by telephone. Given Dr Madziva’s background, I consider that even if a staffer advised him that his withdrawal had been effected on his behalf, he should have realised this was out of line with the procedures for withdrawing and should have turned his mind to checking that the information he received during the alleged telephone call was accurate prior to the end of the application period.
Mr Maundrell, for the respondent, suggested that Dr Madziva should have expected an administrative fee to be applied to his withdrawal[12] and implied that the lack of any fee was another reason Dr Madziva should have turned his mind to the fact that his withdrawal may not have been effected.
[12] Exhibit 3, Annexure H – “Policies and Guidelines” extracted from the 2011 OUA Student Handbook indicates a financial penalty of $150 for withdrawals that occur prior to the start of the study period, and $225 for withdrawals that occur in the first week of study (for three units).
At the hearing, Dr Madziva told me that he had not comprehensively read the Handbook before signing the declaration and was unaware that penalties would apply for withdrawing. He said that the woman he spoke to told him that the withdrawal would take a day to have effect and he would be contacted if there was any problem. When he was not contacted he assumed everything necessary had been done to complete his withdrawal. I do not accept this was a reasonable presumption for Dr Madziva to make. That he did not receive any confirmation of his withdrawal in the days after the telephone call would also have raised a red flag in his mind and motivated him to check that his withdrawal was actually effected. Further, had Dr Madziva familiarised himself with the Handbook, he should have expected a fee for withdrawing, and the absence of one would have been a reason to raise concern that his academic withdrawal had not been successfully effected.
Dr Madziva claims the OUA staffer offered to withdraw him from his enrolled courses. Dr Madziva stated that:
the deliberate and decisive action I took to contact OUA was to get assurance that my withdrawal action would not result in any academic penalty because it was prior to the course/s census date in the relevant semester.
Significantly, at no time has Dr Madziva claimed that an OUA staffer offered to complete an application on his behalf for re-credit of his FEE-HELP balance. When this was pointed out to Dr Madziva, under cross-examination, he said that the OUA staffer assured him she would do “all that was necessary”, and also assured him he would not incur any financial penalty. Dr Madziva told me that to him, reference to “academic penalty” was an all-encompassing phrase that included an implication that he would also be granted re-credit of his FEE-HELP balance. Had Dr Madziva read the Handbook thoroughly he would have been aware that that was not the case.
Dr Madziva had access to the Handbook, which explained the procedures necessary to successfully apply for re-credit of his FEE-HELP balance. He was capable of reading those guidelines, and given his circumstances of needing to withdraw from courses for which he had applied for FEE-HELP, he had an obligation to read the relevant parts of the Handbook carefully. Had he done so he should have been aware that he had not followed the procedures necessary to have his FEE-HELP balance re-credited. The Handbook makes it clear that withdrawing from academic courses does not automatically result in a re-credit of FEE-HELP balance. For the FEE-HELP balance to be re-credited, a specific written application is necessary. Dr Madziva had plenty of time to read the Handbook and check appropriate procedures had been followed when he returned to Australia after providing care for his mother for 9 months.
Even if an OUA staffer had told Dr Madziva that they had effected his withdrawal on his behalf, Dr Madziva has sufficient reasons to realize that the ordinary procedures necessary to withdraw from courses without academic penalty and to have his FEE‑HELP balance re-credited had not been followed. He was capable of checking the accuracy of the information provided to him by the OUA officer in the months following his return to Australia, and capable of making a written application for re-credit of his FEE-HELP balance before the end of the application period. It was certainly possible for Dr Madziva to complete a written application prior to the end of the application period. The need to do so, therefore, cannot be waived.
There is no discretion in the legislation to waive the requirement for the application to be made before the end of the application period for any reason other than it was “not possible” to do so. Whilst there is provision for special circumstances included in the legislation, these special circumstances apply only to the reason the person was unable to complete the course work.
Therefore, even if I accepted that Dr Madziva was misled into believing his application for withdrawal was effected by an OUA staffer (I have made it clear that I do not accept that proposition), that would not be a reason which would allow the waiving of the requirement to make a written application prior to the end of the application period.
Are there are special circumstances that apply in this case which allow the debt to be re-credited to Dr Madziva’s FEE-HELP balance?
While, strictly speaking, having found the applicant does not satisfy the requirement of making a valid application before the end of the application period and that it was possible for him to have made his application before the end of the application period, there is no need for me to consider if there are special circumstances in his case as to why he did not complete his units of study; however, for completeness I will do so.
In relation to the requirement that there be “special circumstances” in accordance with s 104-25(2)(c) of the Act, Dr Madziva’s mother’s illness was certainly an event that was beyond his control (see s 104-30(3)(a)) and which made it impractical for him to complete the requirements for the units during the period in which he was enrolled to undertake those units (see s 104-30(3)(c)). Dr Madziva’s mother’s illness made its full impact on Dr Madziva just after the commencement of the study period when he had to abandon his job and his studies in Australia and return to Zimbabwe at short notice for a period of nine months. The legislation requires that the circumstances must not make their full impact on the applicant until on or after the census date, which was 24 March 2011 (see s 104-30(3)(b)). That is not the case here, as the full impact of Dr Madziva’s mother’s illness forced him to leave Australia on 4 March 2011, well before the census date.
I therefore find that Dr Madziva does not satisfy the requirement that there are special circumstances in his case in accordance with s 104-25(2)(c) of the Act.
Dr Madziva claimed that being misled about his withdrawal being effected was a special circumstance. He did not contend that his belief that an OUA staffer had effected his withdrawal impacted on his ability or decision not to complete the units of study during the period in which he was to undertake the units. He did not contend that he would have come home during the study period and complete the units but for the fact that he erroneously believed that he had withdrawn. Quite the opposite: Dr Madziva told me that he was required to take his mother to South Africa for medical treatment, that she had a number of medical problems and he was instrumental in her care for many months in 2011. By the time he had allegedly been misled into believing he had withdrawn, it was already impracticable for him to complete his study requirements as he had already decided to go to Zimbabwe and care for his sick mother for the remainder of the study period. It was for that reason alone he did not complete the units in the required time frame.
The legislation that allows for special circumstances is not enlivened in Dr Madziva’s case.
CONCLUSIONS
Dr Madziva’s circumstances do not satisfy the requirements of either ss 104-25(2)(c), (d) or (e) of the Act. His FEE-HELP balance cannot be re-credited with the amounts he received in FEE-HELP assistance for the three units that he enrolled in to be completed in the first half of 2011.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ..................[Sgd]......................................................
Associate
Dated 2 July 2013
Date of hearing 7 June 2013 Applicant In person Advocate for the Respondent Mr Shane Maundrell
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