Hopf and Department of Education, Training and Youth Affairs - [2001] AATA 215

DECISION AND REASONS FOR DECISION [2001] AATA 215

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/697

GENERAL ADMINISTRATIVE DIVISION     )
           Re      Lorna Hopf
  Applicant
           And    Secretary, Department of Education, Training and Youth Affairs
  Respondent

DECISION

Tribunal Mr J.T.C Brassil, AM, Member

Date21 March 2001
PlaceMelbourne

Decision      The Tribunal decides to affirm the reviewable decision.
  …………………………………
  Member
CATCHWORDS
HIGHER EDUCATION - Higher Education Contribution Scheme – notification of withdrawal – census date for semester – application for remission of debt – special circumstances – Secretary's guidelines – decision affirmed

Higher Education Funding Act 1998 ss. 106L(1), (3), (3A)

Secretary, Department of Education Training and Youth Affairs v Ellem, FCA 695 (26 May 2000)

REASONS FOR DECISION

21 March 2001 Mr J.T.C Brassil, AM, Member

This is an application by Ms Lorna Hopf for review of a decision made by a delegate of the respondent on 17 March 2000 not to remit her semester debt incurred in Semester 2 of 1999 in the Graduate Diploma of Education (Early Childhood Education) course at the RMIT University. This decision was reviewed by an authorised officer and on 15 May 2000 the original decision was affirmed.
The applicant was not present at the hearing on 24 October 2000 but was represented by her mother, Mrs Pamela Hopf, who was accompanied by the applicant's father. The respondent was represented by Mr G Fairfield of the office of the Australian Government Solicitor. Documents submitted pursuant to s. 37 of the Administrative Appeals Act 1975 were taken into evidence together with ten other documents. Those from the applicant were a Certificate in Child Care and Education (Exhibit A1), Medical report from Dr P Nurse dated 2 August 2000 (Exhibit A2), a RMIT University document describing roles and responsibilities of field experience teachers and co-ordinators (Exhibit A3), Transcript of Results dated 13 July 1999 (Exhibit A4) and handwritten comments by Ms Blythe dated 18 June 1999. Those from the respondent were letter from Associate Professor Greg Heath to Mrs Hopf dated 7 September 1999 (Exhibit R1), letter from Associate Professor Heath to the applicant dated 14 December 1999 (Exhibit R2), letter from the applicant to the RMIT Academic Registrar dated 9 March 2000 (Exhibit R3), academic transcript of the applicant dated 6 September 2000 (Exhibit R4) and respondent's Statement of Facts and Contentions to which was attached a memorandum from Peter Meaney, course leader undergraduate programs dated 8 September 2000 (Exhibit R5).
FACTS
The applicant, Lorna Hopf was enrolled at the Royal Melbourne Institute of Technology University ("RMIT University") in the first and second semesters of 1999 in the course designated Graduate Diploma of Education (Early Childhood).
She was notified on 13 July 1999 that she had completed six of the seven subjects of the first semester (Exhibit A4) gaining one distinction, three credits and two passes. The result in the other subject which was the practicum, the field experience, was not immediately available.
This field experience was undertaken at the Fairy Hills Child Care Centre, Ivanhoe, and the applicant's supervisor there was Ms Fakhry.
The supervisor of her field experience, Ms Iris Blythe, had visited her once during this period making written comments which were passed to the applicant (Exhibit A4). These notes were generally encouraging and not interpreted as indicating a possible failure.
Ms Fakhry told the applicant in the last week of her placement that she may not be passed in this practical component. The applicant contacted Ms Blythe who told her she could expect to pass the course and told her to return to the Centre and complete the remainder of the practical part of the course. The applicant did as instructed.
The University staff awaited the delayed recommendation of Ms Fakhry who was required in the roles and responsibilities document (Exhibit A3) to provide her recommendation within a week of the completion of the practicum.
The census date set for withdrawal from semester two without incurring a HECS debt was 31 August (T26). The applicant and her parents made requests to the authorities at RMIT University seeking the result of the practical component, designated Field Experience 1, without success.
On 8 September 1999 Ms Blythe notified the applicant that she had failed the subject. On 9 September 1999 both parents wrote to Ms Blythe (T5) seeking an explanation of the fail grade in Field Experience 1 stating their view that their daughter had no choice now but to withdraw from the Early Childhood course.
Later in September a meeting was held with Associate Professor Greg Heath who was acting head of the department responsible for the early Childhood courses. At this meeting the applicant and her parents were represented by Mr A Ralph, barrister and solicitor (see T6). After consideration Associate Professor Heath decided that he would amend the grade to pass. He also undertook that staff would be available to give extra assistance to the applicant in her continuing studies in semester two.
The applicant did not attend all the required lectures during and following this period of uncertainty over her result in Field Experience 1 (T19). She did submit some written work to Ms Bernice Nyland, one of which was marked as a failure and another was returned to her for resubmission.
On 6 December 1999 the applicant's mother wrote to Associate Professor Heath (T7) to request that the applicant's academic record be amended as discussed as he had stated in his letter of 24 September 1999 (no copy was available to the Tribunal). Further she stated that "despite all your promises of support, none have eventuated". She then requested that her daughter be withdrawn from the remainder of the modules of semester two not yet completed. The stipulated grounds of request for withdrawal were the actions of the Associate Professor and his staff said to have "deliberately set out to further demoralise her and prevent her from completing the Graduate Diploma".
Associate Professor Heath responded on 7 December 1999 (Exhibit R1) denying any vindictive retaliation in any form. He referred to the agreement with one of the staff, Ms Anne Wilks, to extend the due dates for theory subjects until January and for the outstanding subjects to be recorded as "Result Withheld". However he informed Mrs Hopf that if Lorna did insist on withdrawing he would require a written request from her daughter. He stated "I would encourage you reconsider your request to have her withdrawn from the course as she has satisfactorily completed a significant amount of the program.".
On the same day, a further letter from Mrs Hopf to Associate Professor Heath expressed the view that the applicant "was victimised and demoralised to such an extent that she was prevented from completing the Graduate Diploma that she had worked so hard to obtain". She expressed the grounds for her daughter's withdrawal on this occasion to be that she "was misled into re-enrolling as a result of Ms Blythe's negligent misstatements".
On 9 December 1999 the applicant herself wrote (T9) confirming the request for withdrawal from semester two except for a course designated JC331 which Exhibit R4 shows she passed at Credit level.
Acknowledging her request on 14 December 1999 Associate Professor Heath stated he had commenced the process of withdrawal and said that if at any time she wished to return to complete the course she would be welcome. The request for withdrawal was formally granted by Associate Professor Heath on 21 December 1999 (T10).
Both parents of the applicant wrote on 4 January 2000 to the Vice-Chancellor of RMIT University, Professor David Beanland, drawing to his attention the circumstances relating to their daughter which they described as "a serious case of victimisation". In referring to the grades for written work in semester two they stated: "It was obvious she was penalised for making a complaint. This is in clear contravention of RMIT complaints policy.". They said they were considering potential legal action against the RMIT University.
The Acting Vice-Chancellor, Dr Ruth Dunkin, responded (T1, p 5) on 21 January 2000 after an investigation of the issues raised by Mr and Mrs Hopf. Dr Dunkin expressed "regret for any distress Lorna has experienced, however I believe that the staff of the Department have acted fairly and offered assistance.".
Associate Professor Heath wrote to the applicant on 20 January 2000 enclosing an application form for remission of HECS debt in special circumstances. He requested that the form be returned to his office and offered that on receipt it would be forwarded to the Department of Education, Training and Youth Affairs ("DETYA") office in Canberra. The form (T13) stated under "Special Circumstances" the following "Course related reasons. See attached letter". The application was dated 28 January 2000 but was received by DETYA in Canberra on 7 March 2000 (T15) without the attached letter of explanation.
The rejection of the application was sent on 21 March 2000 together with documentation relating to remission of HECS debts, a copy of the relevant sub-section of the Higher Education Funding Act 1998 ("the Act") and a copy of the Secretary's Guidelines for Special Circumstances for Remission of these debts.
On appeal Lorna Hopf sent a letter on 30 March 2000 setting out her grounds for review of the decision to reject her application. In this letter she referred to her contact with Ms Blythe concerning her possible failure in Field Experience 1 and claimed that during semester 2 "I became increasingly stressed as I still had not received my result for the practicum". She referred to the outcome of the meeting of Associate Professor Heath with her solicitor saying "On the strength of this I returned and worked hard, submitting three further assignments. When two were returned to me with fail grades and extremely negative remarks, it became obvious I was being punished for daring to complain and was effectively being forced out of the course."
ISSUES BEFORE THE TRIBUNAL
As there is common ground that the applicant sought withdrawal from most of her semester two subjects after the semester date of 31 August 1999 the Tribunal must consider whether there were "special circumstances" that would justify the use of the power of the Secretary to remit the debt.
LEGISLATION
The Act provides at s. 106L that the Secretary has power to remit debt in special circumstances. The relevant sub-sections are as follows:
"(1)The Secretary may, in writing, remit the whole or part of a person's HEC semester debt if:
(a)the person has not completed the course requirements for his or her course of study in respect of a semester during the semester or during the year in which the semester occurred; and
(b)the Secretary is satisfied that special circumstances apply to the person (see subsection (3)); and
(c)the person applies in writing to the Secretary for remission of the debt within 12 months after the person's withdrawal day in relation to a unit in the person's course of study for the semester (see subsection (3B)).
…
(3)For the purposes of this section, special circumstances, in relation to a person, include circumstances that the Secretary is satisfied:
(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 course of study for the semester or the study period (as the case requires); and
(c)make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs, or the units of study for which he or she was enrolled for the study period (as the case requires).
(3A)The Secretary may issue guidelines relating to the circumstances in which the Secretary will be satisfied of a matter referred to in paragraph (3)(a), (b) or (c). A decision of the Secretary under subsection (1) or (2) must be in accordance with any such guidelines."

EVIDENCE

No oral evidence was given. The applicant chose not to attend the hearing. The Tribunal emphasised at the commencement of the hearing that her absence would not assist in making a decision if credibility of the applicant was at issue. Arrangements were in place for telephone evidence to be given by Associate Professor Greg Heath, acting Head of the relevant Department at the RMIT University. After a short adjournment for the specific purpose of arranging for this telephone evidence Mr Fairfield informed the Tribunal that the Associate Professor would not, on the advice of RMIT University legal advisers, give evidence at this hearing.
From the T documents and the other documentary evidence there are a number of matters relevant to the issue before the Tribunal which follow.
Exhibit A1 was a Certificate of Child Care and Education dated 7 January 1998 issued by the Australian Early Childhood College to the applicant on her successful completion of the course. All 12 courses including the Field Practicum 1 and 11 were passed at Credit level. This was taken into consideration by Associate Professor Heath in his decision to enter a pass mark for the applicant in the field experience module of semester 1.
The only medical information was a certificate dated 8 August 2000 from Dr P Nurse of 497 Whitehorse Road Balwyn and a prescription label dated 21 September 1999 for 28 Zoloft tablets for L Hopf to be taken one daily at night. The certificate from Dr Nurse stated that the applicant "presented at the clinic with symptoms of anxiety/depression on the 17/9/1999". The applicant's parents confirmed that the Zoloft tablets, anti-depressants, were taken by her and she did not return for further treatment or medication for her condition.
The Course Leader Undergraduate Programs at RMIT University, Peter Meaney, in his memorandum of 8 September 2000 (attached to Exhibit R5) stated he was not aware of complaints by the applicant regarding victimisation coming through any of the formal structures for complaints.
There was a meeting between the applicant and her mother with Associate Professor Heath and the Academic Registrar, Mr G R Pope, on 20 March 2000 to discuss a possible return of the applicant to complete the course (see Exhibit R3). The applicant did not return.
SUBMISSIONS
Mrs Hopf submitted that the conditions for "special circumstances" in the Act were fulfilled in her daughter's situation. She also submitted that all that was required in the Secretary's guidelines for special circumstances were met.
It was her submission that her daughter should have been passed in the field experience module and this was eventually done, but only after her strong representations to Associate Professor Heath. Then although this was agreed late in September 1999 no confirmation was available in December when she wrote to him. The direct result of this unfortunate experience was to traumatise and upset her daughter who was normally a placid girl.
The combination of the withheld result and the uncertainty for her daughter despite assurances she had been given resulted in the symptoms of anxiety and depression certified by Dr Nurse when she visited him on 2 August 1999. She was not attending all her classes because of this but did try to submit work in some subjects. The failure marks and the negative comments from Ms Nyland traumatised her daughter.
These happenings were all beyond her control and made their full impact on Lorna after the census date. They had the effect of making it impracticable to complete the requirements of her course of study because she was being victimised as a result of complaining about the field experience module.
The applicant's father submitted that the attitude of staff at the RMIT University has continued as shown when their daughter attended a meeting about re-enrolment with Associate Professor Heath and Academic Registrar Pope on 20 March 2000. "She was so mercilessly treated and so horribly bullied at this meeting that she burst into tears and was inconsolable". (Transcript, page 39 at 27)
Mr Hopf submitted that despite what Associate Professor Heath said there was absolutely no support given to Lorna by Ms Nyland, the staff member who failed her on two assignments in semester two.
Mr Fairfield submitted that there was no medical evidence to confirm the claim that the applicant was traumatised by the events. There was only evidence that she attended Dr Nurse once on 17 September 1999 and had been prescribed a single course of anti-depressants. This was following the notification of failure in the field experience module. There was no evidence of a consultation with any doctor later than this and her mother had confirmed this and that she had only one course of anti-depressants. Her medical situation could not properly be assessed as Dr Nurse was not presented to give evidence and be cross-examined. It was his submission that not much weight could be placed on this evidence of the applicant's medical condition.
The absence of the applicant from the hearing was another problem raised by Mr Fairfield as she could not be questioned about her health or her reaction to the circumstances described at the hearing.
He submitted that it was significant that the applicant had not withdrawn when she was notified that she had failed, on 8 September 1999 or soon after. The evidence confirmed that she continued with the course and was, in the circumstances, given an extension of time to complete. It was his submission that the staff of the RMIT University went out of their way to help the applicant at this time but she did not avail herself of this assistance. It was clear from Associate Professor Heath (Exhibit R1) that time for submission had been extended to assist her to complete. Her withdrawal followed her perception that she had failed a subject.
Mr Fairfield submitted that it was being put that the applicant was traumatised but there was no illness. At this time she was attending some courses and submitting some assignments. In his submission whether or not the applicant was stressed at the time "…is something that can't be tested here because the applicant is not here…" (Transcript, page 38 at 8).
It was his submission that it was not impracticable at any stage for the applicant to attend lectures and she did so after the census date. She had submitted two pieces of work, one was returned marked "fail" and the other with "needs more work". While the applicant construed this as a failure in respect to the course Associate Professor Heath wrote subsequently saying she could still have passed the course and that she should not withdraw.
Mr Fairfield submitted that the reviewable decision ought to be affirmed as there were no grounds established that would justify the use of the Secretary's power to remit pursuant to ss. 106L(3).
CONSIDERATION OF THE ISSUES
While the officers of the respondent's Department in making the reviewable decision clearly acted as if the Secretary's guidelines provided the criteria for determining "special circumstances" pursuant to ss. 106L(3) the Tribunal accepts the decision of Lindgren J in Secretary, Department of Education Training and Youth Affairs v Ellem FCA 695 (26 May 2000) which found the guidelines invalid. In this consideration the Secretary's guidelines will not be taken into account.
Thus the Tribunal will consider the circumstances of the case against the provisions of ss. 106L(3) to decide whether or not there are special circumstances which would justify the use of the Secretary's power to remit the applicant's HECS debt for semester two of 1999.

The circumstances being presented on behalf of the applicant to be considered are (1) the trauma associated with the eventual result in Field Experience 1 which was notified after the census date, (2) the anxiety and depression symptoms that she had experienced since then which were identified by Dr Nurse on 17 September 1999 and treated by one course of anti-depressants over the next month, (3) the consequential stress which resulted in her only attending some lectures and only submitting some assignments, and (4) the alleged "victimisation" which resulted in what she thought was the motivation for failing her in two assignments.
The Tribunal is satisfied, even in the absence of the applicant and her general practitioner from the hearing and the lack of any detailed medical evidence, that she did have a period of anxiety following the unfortunate delay in receiving her result in the field experience module. The officers of the RMIT University, particularly after the late September meeting with the applicant and her solicitor, offered to put into place certain measures which recognised that she was adversely affected as a result of what had happened. They also extended the time for presentation of work in theory subjects to January. These staff members were all professionals so it can therefore be assumed they believed they had good reason to do so.
It is regrettable that Associate Professor Heath was not prepared, upon advice, to give evidence as issues such as this could have been made clearer to the Tribunal. It is noted that Associate Professor Heath was still of the view that the applicant could complete semester two and encouraged her to do so as late as 7 December 1999 (Exhibit R1) when her mother indicated she wished to withdraw. This is an issue crucial in this consideration and his evidence could have been of great assistance to the Tribunal.
Evidence was available that it is usual academic practice in the RMIT University to "double-mark" fail gradings. That this was not known to the applicant or her parents is of little weight but if it happens then the potential for "victimisation" is considerably reduced and, in this case, the "victimisation" is denied by the University. The Tribunal accepts the second assignment was marked for re-submission and not failed. To be given a second chance cannot be characterised as harsh or unfair treatment. In fact the Acting Vice-Chancellor stated that the investigation initiated after the complaint by the parents "has discovered no evidence to support your claims.".
In these circumstances the Tribunal cannot positively conclude the applicant was being victimised in the manner alleged.
The Tribunal can, however, accept that the other three circumstances listed above (para 45) were beyond the applicant's control and that they did not make their full impact until after the census date.
How serious was the applicant's anxiety in October and November remains in doubt as she did complete one subject JC 331 (Exhibit R4) at Credit level and did not seek further medical treatment. The Tribunal, in the absence of direct evidence, relies on the special arrangements offered by the University to conclude there was some adverse affect on the applicant over this period.
The final issue for consideration is whether those circumstances make it impracticable for the applicant to complete the course requirements for the semester during the semester or during the year in which the semester occurs. It is not sufficient to find some of the ss. 106L(3) criteria for "special circumstances" exist, all three must be established.
As the semester dates for submission of her work in theory subjects had been extended to January 2000 the Tribunal has taken the semester to end at the later date. The statement of Associate Professor Heath that the applicant could still complete the course was not challenged before the Tribunal hence the Tribunal finds that the circumstances which have been accepted would not have resulted in it being impracticable for the applicant to complete the course requirements by the revised date for completion.
In the submissions on behalf of the applicant the impracticability of completion depended significantly on the "victimisation" alleged and as the Tribunal has not been satisfied in relation to that matter it cannot find that it was impracticable for the applicant to complete.
CONCLUSION
After considering all the circumstances of this case the Tribunal finds that it cannot justify the use of the Secretary's power to remit the whole or part of the applicant's semester debt as "special circumstances" pursuant to ss. 106L(3) have not been established. It will affirm the reviewable decision.
I certify that the fifty-five preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J.T.C. Brassil, AM, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  24 October 2000
Date of Decision  21 March 2001
For the Applicant  Mrs P. Hopf, applicant's mother, accompanied by the applicant's father
For the Respondent                 Mr G. Fairfield, Australian Government Solicitor