Ibrahim and Secretary, Department of Education Skills and Employment
[2020] AATA 4127
•14 October 2020
Ibrahim and Secretary, Department of Education Skills and Employment [2020] AATA 4127 (14 October 2020)
Division:GENERAL DIVISION
File Number: 2019/7411
Re:Marcus Ibrahim
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Ms A E Burke, AO Member
Date:14 October 2020
Place:Melbourne
The Tribunal affirms the decision under review.
Ms A E Burke, AO Member
Catchwords
HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-crediting – whether special circumstances apply – whether applicant’s circumstances made their full impact on or after the census date – whether circumstances are beyond the applicant’s control – whether applicant had withdrawn before the census date – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administration Guidelines 2012 (Cth)
Higher Education Support Act 2003 (Cth)Cases
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Ullah and Secretary, Department of Education and Training [2018] AATA 2159Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
REASONS FOR DECISION
Ms A E Burke, AO Member
14 October 2020
INTRODUCTION
Mr Marcus Ibrahim (the Applicant) is seeking a review of the decision made by RMIT University to deny his request for remission/re-credit of his FEE- HELP[1] balance.
[1] FEE-HELP assistance for students to pay tuition fees for units of study that are not Commonwealth supported.
On 10 October 2019, the office responsible at RMIT University for reviewing Higher Education Support Act (HESA) remission requests found that Mr Ibrahim was not entitled to a remission/re-credit of his FEE- HELP balance. This was because Mr Ibrahim had not demonstrated the three special circumstances criteria required under the Higher Education Support Act (‘the Act’).
On 6 November 2019, Mr Ibrahim applied to this Tribunal for review of the responsible officer's decision. In the application he claims the decision is wrong for the following reasons:
‘I am writing to you and seeking your review on my Application for Remission of Debt in Special Circumstances.
Further to my previous statement, I called the school for support on several occasions as I was having difficulty with the cancellation process. There were also some system issues with cancelling the course at that time.
Can the school reconfirm that they have listened ·to these calls made by me to the school requesting for assistance, whereby Helpdesk helped me cancel the course, and confirmed that the course was in fact cancelled? Is it possible for me to obtain a copy of those calls?
A month later I received an invoice for payment. I called school support again and they assisted me with cancelling the course. Please refer to these recorded calls as evidence.
The course cancellation was also made verbally to the secretary and the course co-ordinator at the Point Cook campus on week 3 of the first semester. I was under considerable personal stress at the time, but persisted with the cancellation and do believe that I followed the right process.
The letter stated that I did not provide supporting documentation. I did in fact provide a letter from my Dr. please refer to the medical certificate previously provided, and the recorded calls to the school as evidence. This ongoing matter has caused me further stress.
The reply states that as part of the criteria, 'these must be demonstrated by independent supporting documentation'. Can you please provide examples of any other documents (other than what has already been provided – medical certificate from my Dr and school call recordings confirming cancellation), that is reasonable for me to provide and meets .meets the criteria? Thank you.
As previously stated, I am under financial and personal stress, and therefore I was unable to continue with my course, it would not have been appropriate for my for my physical or mental wellbeing. As previously advised, I have a number of financial commitments given that my children live interstate with their mother, and I have a child who has special needs, requiring additional medical attention. I am not in a position financially to pay for a course (especially flying lessons which I did not take) that I did not attend and cancelled. This will impact my family and in particular my sons medical needs.
I have not taken any flying lessons, advised that I would not be able to commit to the training for these reasons and cancelled the course as required. I believe that I have followed the correct process. It seems very unfair to request payment for a course I cancelled, did not attend and also pay for flying lessons which I did not take.’
[Errors in original]
The application was heard via telephone on 31 July 2020. Mr Ibrahim was self-represented and Ms Kate Ervin, of Clayton Utz, appeared for the Respondent. Mr Ibrahim gave evidence under affirmation and was cross-examined by Ms Ervin. At the conclusion of the hearing, the Tribunal allowed Mr Ibrahim to submit a statement from a witness and the Respondent the opportunity to respond to the additional material.
BACKGROUND
On 5 February 2019 Mr Ibrahim sent an email to RMIT advising he was attempting to enrol in the Associate degree in Aviation (Professional Pilots - APL0202407). However, Mr Ibrahim was late with his application as he was awaiting the issue of a new passport.
On 6 February 2019 a reply email was sent to Mr Ibrahim from RMIT Connect, seeking information about what kind of specific financial assistances he was intending to apply for. Mr Ibrahim submitted a request for a SA-HELP loan.
On 6 February 2019 Mr Ibrahim enrolled via self- service enrolment in a full-fee domestic Undergraduate Associate Degree in Aviation (Professional Pilots) located at the Point Cook Campus. Mr Ibrahim enrolled in the following units:
(a) AERO2465 - Introduction to Aircraft;
(b) AERO2466 - Theory to Recreational Pilot Licence;
(c) MATH2222 - Mathematics; and
(d) AERO2467 - Flying to Recreational Pilot Licence
On 7 February 2019 RMIT issued Mr Ibrahim a Confirmation of Enrolment 2019 statement.
On 29 March 2019 RMIT Connect sent an email to Mr Ibrahim advising that he has successful completed a SA-HELP loan application for his Services and Amenities Fees (SSAF), but he currently has tuition fees outstanding for enrolments with a census date of 31 March 2019.
On 29 March 2019 Mr Ibrahim submitted a request for a FEE-HELP loan. The form states the ‘first census for the loan application is 31 March 2019 and that you must submit your application before this date’. The form contains the following terms and agreement Mr Ibrahim accepted by virtue of submitting his form electronically:
SECTION E. REPAYING YOUR LOAN
By submitting this eCAF, you are declaring that you agree to the following statements:
You request that:
• the Government lends you the amount of tuition fees which remain unpaid at the census date for the unit(s) of study in your course. You will not receive the money, but it will be paid to Royal Melbourne Institute of Technology on your behalf.
You understand that:
• it is your responsibility to be aware of your FEE-HELP balance and to advise your provider(s) if you are approaching the FEE-HELP limit and may not have enough FEE-HELP balance to cover your tuition fees. In this situation, you will advise your provider of how much FEE-HELP you wish to access.
• over your lifetime, the amount of FEE-HELP assistance (and VET FEE-HELP NET Student Loans assistance) that you access must not exceed the FEE-HELP limit as set out in HESA.
• a 25% loan fee may be applied to the FEE-HELP loan if it relates to an undergraduate course, and that this loan fee may be included as part of your accumulated HELP debt. If you are enrolled in a "Table B" provider (Bond University, The University of Notre Dame Australia, University of Divinity and Torrens University Australia) the 25% loan fee will not be applied to your FEE-HELP loan if it relates to an undergraduate course. This only applies to courses of study with a census date on or after 1 January 2019.
• you have an obligation to repay to the Australian Tax Office (ATO) the amount that the Government has loaned you, regardless of whether you complete your studies or not, and regardless of where you live, including overseas.
• your debt to the Government will remain if you withdraw or cancel your enrolment from your course after the census date but your debt may be removed by Royal Melbourne Institute of Technology in special circumstances.
• your Higher Education Loan Program (HELP) debt will be indexed annually in line with HESA, which you also agree to repay to the ATO.
• you are able to cancel this request, in writing, at any time, with Royal Melbourne Institute of Technology and it will no longer apply from that time. However, this must be done on or before the census date, otherwise you will have a debt to the Government that you are legally required to repay.
You must start repaying your HELP debt through the Australian tax system once your income is above a certain level (the minimum compulsory repayment threshold). The threshold is indexed annually. Repayments made through the Australian taxation system are called 'compulsory repayments'. In accordance with Chapter 4 of HESA, these repayments will continue while your income is above the compulsory repayment threshold until you have repaid your whole debt, even if you have not completed your studies and regardless of whether you have moved overseas.
HELP debts are managed by the ATO. You can view your HELP debt, confirm your payment reference number and view payment options online. To do so, you need to create a myGov account and link it to the ATOs on line services - find out how at: booklet (studyassist.gov.au):
• I have read the FEE-HELP 1nformation booklet and I am aware of my obligations under the loan scheme.
Declarations:
• I declare that the information on this eCAF is complete and correct and I can produce documents to verify this if required.
• I understand that it is my responsibility to be aware of my FEE-HELP balance and to advise my provider(s) if I am approaching the FEE-HELP limit and may not have enough FEE-HELP balance to cover my tuition fees. In this situation, I will advise Royal Melbourne Institute of Technology of how much FEE-HELP assistance I wish to access. Students studying medicine, dentistry' and veterinary science courses will have a FEE-HELP limit of $150,000. Students studying all other courses will have a FEEHELP limit of $104,440. These amounts will be indexed annually.
• I understand that if my eligibility for a FEE-HELP loan changes, I must notify Royal Melbourne Institute of Technology.
On 11 April 2019 Mr Phillip Donkin, made a file note in respect of a student enquiry request, noting;
‘Student said he spoke with Vinny at the start of teaching as he can not study full time at the moment with work and family. Student said Vinny said he could take leave of absence. I asked student if he did anything after that and he said no’.
[Errors in original]
On 11 April 2019 Stefan Filonzi, made a file note in respect of a student enquiry request, noting;
‘Discussed with student. They were made full aware to take a LOA immediately based on their situation and commit to the course. The student was seeking to PM they wanted a Part-Time load but this course is not offered on a Part-Time basis. The student admitted he should have taken action at the time but didn't and forgot to. Student will dispute the fees and put their case forward. Will be lodging this under complaints or fees under the portal, he advised he was happy to do this and I offered any help or assistance in doing so’
[Errors in original]
On 24 April 2019 RMIT issued Mr Ibrahim with a Commonwealth Assistance Notice which indicated he had a total FEE-HELP debt of $40,800.00.
Mr Ibrahim lodged an Application for Remission of Debt in Special Circumstances to RMIT in which he stated:
‘I am seeking an exemption for fees, as my family circumstances have changed considerably.
My children live in Canberra with their mother and my son has special needs which require treatment, counselling and psychiatric sessions. My son has been having ongoing issues at school which require me to attend his school and meet with his principle [sic]. I am also attending medical appointments, and now need to travel to Canberra once a week. This is taking time away from work, my ability to commit to a full time study and is causing significant financial hardship.
When I initially enrolled into the course, I was advised that there would be flexible study options, but have since discovered out of necessity that this is not the case. I am seeking alternative part time attendance that will still allow me to work, have to travel to Canberra to see my children and study. I am finding it almost impossible now to attend class since my son health condition requires more attention and support.
I have not taken any flights to date and seek your consideration for family/personal reasons, and circumstances that I did not forsee’
[Errors in original]
Extracts from the Australian Taxation Office Tax Agent Portal indicating a HELP Account of $45,925.50 and an impact assessment statement completed by Dr Merran Pang of Kensington Medical Clinic dated 9 August 2019 were provided with the application. Dr Pang determined that Mr Ibrahim suffers from 'stress due to family/personal reasons and sleep deprivation as consequence of family circumstances', and that he would not be able to perform a task requiring intense concentration for 1-2 hours affected from 4 March 2019 to 'ongoing'.
On 29 April 2019, ‘Swati’, of the HESA Remissions Integrity Academic Registrar’s Group RMIT, acknowledged receipt of Mr Ibrahim’s application for re-credit of his FEE-HELP debt. Swati advised that the University is unable to process the application, as he was not eligible for re-credit as Mr Ibrahim is currently enrolled in the course. Swati advises that to be eligible to apply for remission of debt Mr Ibrahim needed to have withdrawn from the course or that the course has concluded, and he has failed.
On 13 May 2019, Mr Ibrahim dropped three of the Units he was enrolled in via the self-service enrolment:
(a) AERO2465 - Introduction to Aircraft;
(b) AERO2466 - Theory to Recreational Pilot Licence; and
(c) MATH2222 – Mathematics.
On 23 May 2019, Stefan of RMIT Connect sent an email to Mr Ibrahim advising
‘I tried to phone you earlier to touch base and see where you were up to with your cancellation and remission of debt query. As it had been more than 5 days since we had heard from the you the ticket will now be closed’.On 5 July 2019, ‘Soryakane’ of RMIT Connect sent an email to Mr Ibrahim advising ‘I am just writing to let you know you are still active in the program as off today, Cancellation need be submit before 31/08/2019 to avoid any financial penalty for Semester 2 2019’.
On 10 July 2019, Maryann Phoenix, Secretary of the Program Assessment Board RMIT, sent an email to Mr Ibrahim advising that he had made unsatisfactory academic progress and invited him to attend an academic advice interview.
On 2 August 2019 Mr Ibrahim resubmitted the application he had made on 29 April 2019 to RMIT for re-credit of his FEE-HELP balance.
On 5 September 2019 the HESA Remissions Officer at RMIT advised Mr Ibrahim his application for remission of debt in special circumstances had been denied, stating:
Reasons for denial of remission in this case
By way of background, the federal government's Higher Education Support Act 2003 and the associated Administration Guidelines 2012 specify the conditions and criteria governing HESA remission applications. The requirements laid down by this legislation oblige education providers to ensure that applications for remission satisfy the three requirements (i.e. essential criteria) of the special circumstances test as required under subsections 104-25 (1)(c) and 104-30 (1) and (2) of the Higher Education Support Act 2003 (see Appendix 1 attached to this letter). Applications must be assessed consistently against these criteria and all three of those requirements must be satisfied, and supported with evidence, for special circumstances to be established.
Unfortunately, we're unable to approve your application at this time because your application does not satisfy the special circumstances test (i.e. it does not establish the three essential criteria).
These courses commenced on 11 February 2019 and ended on 21 June 2019. The census date for these courses was 31 March 2019.
In support of your application you provided a statutory declaration and an RMIT Impact Assessment Statement completed by Dr Merran Pang on 9 August 2019. The impact assessment statement evidenced an impact form 4 March 2019 and 'ongoing'-as at 9 August 2019. This information indicates that the full impact of your circumstances was known to you before the Semester 1 2019 census date of 31 March 2019.
Unfortunately we could not identify documentation in your application to indicate:
• that your circumstances did not make their full impact on you until on or after the census date of 31 March 2019, or
• that your existing circumstances worsened (or the full effect did not become apparent until) after the census date of 31 March 2019.
The test for special circumstances has very strict requirements and factors that make their full impact on a person before the census date are unfortunately not deemed special circumstances.
On 17 August 2019 Mr Ibrahim submitted the following appeal to RMIT disputing the outcome of the application for remission of his FEE-HELP debt, stating:
To whom it may concern,
Thank you for reviewing my request. I would like to dispute the decision, and have it reviewed as I do feel it does meet the special requirements criteria. There is also significant financial and family impacts that this debt would bear, and I do feel that I have cancelled the course as per the cancellation criteria.
As I work shift work, I was concerned about my safety and that of others, as I did not feel that it would have been safe for me to fly when not alert, due to exhaustion and sleep deprivation. I also believe that I followed the correct processes to cancel the course before the census date. I had verbally advised cancellation on numerous occasions. I did not take any flights, and I attended 2 days of classroom training in total.
I commenced the course after the start date in late March 2019. On my first day at the Point Cook Campus, I enquired about the possibility of part time study, given the above circumstances. As this was not available, and I acknowledged that I would not be able to work full time shift work, travel to Canberra once a week to see my children, attend medical appointments for my son who has medical issues, and balance this with study, I requested that the course be cancelled. I spoke to the course co-ordinator at Point Cook Flight school campus to cancel. I also advised the secretary at the campus that I could not continue and that I needed to cancel. This was prior to the census date. I was not advised by the Co-ordinator or the Camp Secretary that I would need to complete any online forms.
They advised me to speak to Student Support. I contacted Student Support immediately and prior to the census date. I spoke to Stefan who guided me through the process to cancel. There were some difficulties to access the website at the time, due to the transition of RMIT's platform/system. Having said that, I still completed the course cancellation request online, and believed the course was cancelled.
I then received a call from the Campus Secretary asking why I hadn't cancelled the course prior to the census date. I advised that I had spoken to Student Support to cancel, and that they had guided me through the cancellation process. I then followed this up with Student Support on many occasions and was advised that it hadn't been cancelled. I went through the cancellation process multiple times. I believe that there has been an issue with the communication/instructions/process to cancel provided by Student Support, and don't believe that I should be financially impacted as a result. This debt would financially disadvantage my family and my ability to provide for them. I also feel that I had followed the correct process to cancel and do not feel that I should be financially impacted as a result.
I would also like to request that my student records are amended as I attended two days of classroom training, and did not take any flights, but have been marked as failing exams, etc. This is following my many attempts to advise and cancel my course. Can you please advise.
I look forward to your reply. If this debt is not overturned, can you please advise what the next steps are for dispute?
THE ISSUES IN CONTENTION
The issue before the Tribunal is whether, pursuant to section 104-25(1)(c) of the Act, it is satisfied that special circumstances applied to Mr Ibrahim such that his FEE-HELP balance should be re-credited with an amount equal to the amounts of FEE-HELP assistance he received.
LEGISLATIVE AND POLICY BACKGROUND
Part 3-3 of the Higher Education Support Act 2003 (Cth) (the Act) s101-1 defines FEE- HELP assistances:
What this Part is about
A student may be entitled to FEE‑HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met.
The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a higher education provider or, if the student accesses units through Open Universities Australia, that body, to discharge the student’s liability to pay his or her tuition fees.
Section101-5 outlines that FEE- HELP assistances is also deal with in the FEE- HELP guidelines.
Section104-25(1) outlines the main case of re crediting a person’s HELP balance in relation to FEE HELP assistance:
(1) A higher education provider must, on the *Secretary’s behalf, re credit a person’s *HELP balance with an amount equal to the amounts of *FEE HELP assistance that the person received for a unit of study if:
(a) the person has been enrolled in the unit with the provider; and
(aa) access to the unit was not provided by *Open Universities Australia; and
(b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake the unit; and
(c) the provider is satisfied that special circumstances apply to the person (see section 104 30); and
(d) the person applies in writing to the provider for re crediting of the HELP balance; and
(e) either:
(i) the application is made before the end of the application period under section 104 35; or
(ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.
Section104-30 Defines special circumstances for the purposes of re-crediting FEE-HELP assistances under the Act:
(1) For the purposes of paragraphs 104 1A(2)(b) and 104 25(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:
(a) are beyond the person’s control; and
(b) do not make their full impact on the person until on or after the *census date for the unit of study in question; and
(c) make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake the unit.
(2) If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36 21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Part 5-7 of the Act outlines the decisions which can be reviewed, the process and makers of decisions. Where a decision has been confirmed, varied or set aside following review an application may be made to the AAT for review of the decision.
Chapter 3 of the Administration Guidelines 2012 (Cth) (‘Administration Guidelines’) defines the operation of special circumstances under the Act:
3.1 PURPOSE
3.1.1 The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:
(a) are beyond the person’s control (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 of study in question (paragraph 36-21(1)(b) of the Act); and
(c) make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit (paragraph 36-21(1)(c) of the Act).
3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1 A higher education provider will be satisfied that a person’s circumstances are beyond that 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.
3.5.5 The situation referred to in paragraph 3.5.5 must be unusual, uncommon or abnormal.
3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
3.10.1 A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:
(a) before the census date, but worsen after that day; 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.
3.15 CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS
3.15.1 A higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit if circumstances such as the following occur:
(a) medical circumstances. For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or
(b) family/personal circumstances. For example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies; or
(c) employment related circumstances. For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or
(d) course related circumstances. For example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.
A person is unable to complete the requirements for a unit if the person is unable to:
(a) undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or
(b) complete the required assessable work; or
(c) sit the required examinations; or
(d) complete any other course requirements because of their inability to meet (a), (b) and (c) above.
3.20 ADVICE TO BE PROVIDED TO STUDENTS
3.20.1 Higher education providers must publish the timeframe within which they will consider applications, and within which it will notify applicants of their decision. The method of publication is to be determined by the higher education provider.
3.20.5 In accordance with section 27A of the Administrative Appeals Tribunal Act 1975, the higher education provider is obliged to advise the applicant that, if they are dissatisfied with the initial decision, they may apply to the higher education provider for a review of that decision. The application must be made in accordance with the provisions of and the timeframes specified in the Administrative Appeals Tribunal Act 1975.
3.20.10 In accordance with section 209-10 of the Higher Education Support Act 2003, the application must be made by written notice and must be made within 28 days, or such longer period as the reviewer allows, after the day on which the person first received written notice of the decision.
EVIDENCE
The RMIT University Calendar for 2019 containing the higher education important dates –:
·4 March Semester 1 classes begin
·11 March last day to add classes for Semester 1
·18 March my Timetable closes – last day to allocate or adjust classes
·31 March Semester 1 census date (Sunday)
·3 May last day for students to drop classes without academic penalty for Semester 1
·10-28 June Semester 1 assessment/exam period (three weeks)
An email from Bhavika Patel, Coordinator, Student Engagement and Experience RMIT Flight Training - College of Science, Engineering and Health dated 2 May 2019 advises:
Hi Stefan
I have spoken to Marcus this morning and he has advised that he no longer wants to continue his enrolment under AD023 as we dont offer the part-time program. Could you please email him the steps to cancel his program enrolment via RMIT connect. He is aware that it's his responsibility to adjust his course and program enrolment, unable to do so will incur associated fees. He is sorting his first-semester fees via RMIT connect.
[Errors in original]
An email from Stefan Filonzi, Customer Service Coordinator, Academic Services Carlton RMIT dated 2 May 2019 advises:
HI Bhavika,
No problems and all done.
I have sent an email via the Portal system to Marcus detailing instructions on how to do this and referred him to RMIT Connect in person if he requires further help.
[Errors in original]
An email from Varinder Sohi, Senior Educator, RMIT Flight Training, College of Science, Engineering and Health dated 2 October 2019 advised the HESA Remissions officer:
I have checked my emails and calendar and find no evidence of the student having contacted me before the census date to leave the program.
I do have an email from the student's private account on the 2nd of Feb advising of delays in his enrolment
The student did contact the Point Cook admin team with a request of leaving the program, but this was post census and put into contact with the relevant staff that could assist. Please see attached (Marcus Ibrahim email comm).
From my end, there is no other communication I have had with the student.
An email from Stefan Filonzi, Customer Service Coordinator, Academic Services Carlton dated 2 October 2019 advises the HESA Remissions officer:
I may be able to assist further on this matter as I also had communication with Marcus about cancelling his program prior to census date.
Marcus also had a meeting with the academic staff at Point cook, Varinder Sohi and Bhavika Patel about this.
The RMIT Course Guide outlines the course details for the subject Flying to Recreational Pilot Licence for which Mr Ibrahim was enrolled:
Primary Learning Mode:
You Will participate in classroom theory lessons and use aircraft based at the Point Cook campus.
You will have pre-flight briefings, one-on-one instructor briefings, in-flight practical demonstrations and practice, post-flight briefings using a variety of teaching aids
Approximately 39 hours of flying time.
Course Description:
This is the first course where you will learn to fly and manage a single engine aeroplane. You will be using a basic training aircraft.
This course will prepare you to fly towards RPL level; and build on the knowledge gained in Theory to RPL.
You will be equipped with the necessary skills and knowledge to undertake an assessment to RPL (or equivalent) level as per CASA regulations.
The flying hours in this course are designed to meet the CASA requirements and you will have the option to pay for any additional flying hours through a material fee should additional flight training be required.
An email from Robyn Barclay Office Administrator dated 22 January 2020 advised:
• Student attended sporadically over the first few weeks of semester 1 2019
• Had work commitments and often discussed part time options
• Didn't start on the first day of Orientation
An email from Julia A Lang, Head of Operations, ME IFR Flight Examiner dated 21 January 2020 advised:
Flight Ops does not have any correspondence or FSM records as he did not commence practical flight training.
Kerry recalls that Bhavika or Viny may have corresponded with him in regard to withdrawing from course prior to census.
An undated witness statement from Ms Pamela Leone submitted after the hearing advises:
I am providing a statement to support Marcus Ibrahim's case.
I confirm that I was part of the phone conference to the RMIT IT Department, who guided Marcus through cancelling the course. During this call, the RMIT IT staff member confirmed that the course had been cancelled, and that there were no charges to be incurred. This telephone conference occurred after the census date.
The Commonwealth Supported Places (CSPs) and Higher Education Loan Program (HELP) Handbook 2019 provides the following advice to teachers and career advisors assisting students with navigating the higher education system.
2.1 What is a fee-paying place?
In the higher education sector, a fee-paying place is not subsidised by the Australian Government and students pay tuition fees for their units of study. Fee paying places are generally offered in postgraduate courses at universities, and in both undergraduate and postgraduate courses at non-university higher education providers.
What is FEE-HELP?
The Australian Government does not subsidise fee-paying places. It provides access to the FEE-HELP loan scheme to help eligible fee-paying students with paying their tuition fees, up to the FEE-HELP limit.
5.3 How does a student apply for a FEE-HELP loan?
To apply for a FEE-HELP loan, a student will need to provide their TFN and associated personal details (name, date of birth, and address) as per the information held with the ATO (or a valid Certificate of Application for a TFN). The TFN and personal details provided will be cross-referenced with the ATO and must be successfully matched before assistance will be granted. Students must also submit a Request for a FEE-HELP loan form. Students studying at non-university providers must submit a Request for a FEE-HELP loan — non-university higher education provider form. These forms are only available from providers. The student must return the completed form to their provider by the census date (or earlier administrative date) otherwise they will not be entitled to a FEE-HELP loan for that study period as this form cannot be back-dated.
Before the student submits their form, they must read the FEE-HELP information booklet. The booklet details the terms and conditions of the loan which students have to be aware of.
8.1 Census date information
What is the census date?
The census date is the most important date for a student. It is the last day for an eligible student to either:
• submit the appropriate form to accept an offer of a CSP and/or to access a HELP loan (this is not applicable to OS-HELP and SA-HELP), or
• finalise their student contribution payment so their enrolment in the CSP is not cancelled, or
• withdraw their enrolment without incurring the tuition fees (fee paying places only) for that unit.
Providers set their own census dates (within rules set by the Australian Government) so this date can vary across courses and providers. Some providers choose to set one census date for all units in the same study period, while others choose to set different census dates for their units/different cohorts of students. Providers normally publish census dates on their website.
8.2 Withdrawal by the census date
If a student formally withdraws their enrolment from a unit by the census date, they will not be required to pay the student contribution amount/tuition fees for that unit, meaning:
• if the student had already made an upfront payment for the unit, they are entitled to a full refund of that payment from their provider, or
• if the student chose to use a HELP loan for the student contribution amount/tuition fees, they will not incur a HELP debt for the unit.
8.3 Withdrawal after the census date
If a student withdraws from a unit after the census date, they are liable to pay the student contribution/tuition fees for that unit, meaning:
• if the student made an upfront payment for the unit, they are not entitled to a refund of that payment, or
• if the student chose to use a HELP loan to pay for their study, they will incur a HELP debt for that unit. HELP debts/upfront payments cannot be transferred to another unit of study.
If a student withdraws from a unit after the census date due to serious illness or because of other ‘special circumstances’, they may be able to have their HELP debt remitted and FEE-HELP balance re-credited, if applicable (see section 8.5).
8.4 How does a student withdraw from a unit?
To withdraw from a unit without incurring a HELP debt (or being ineligible for a refund of their upfront payment), a student must follow the formal withdrawal procedures of their provider and ensure their withdrawal request is actioned by the census date. A student is required to complete the formal withdrawal process for every unit they wish to withdraw from. If the student is enrolled in cross-institutional study, they must withdraw from both the home provider and the host provider. Generally, the formal withdrawal process will include the student:
• completing the specific withdrawal form required by their provider (this form is usually online, but students should check with the student administration/enrolments office at their provider),
• submitting their withdrawal form to their provider in time for it to be processed by the census date, and
• keeping a copy of all withdrawal documentation as confirmation that they have completed their provider’s formal withdrawal procedure by the census date.
Note: If a student requires assistance with their withdrawal or to clarify the process required, they must contact their provider. The Australian Government does not process withdrawal forms. If there are any subsequent disputes between a student and their provider, the Australian Government will request to see a copy of all withdrawal documentation as confirmation that the student did correctly withdraw their enrolment by the census date before any assistance can be provided. It is in the student’s interest to keep copies of all documents submitted.
If a student does not correctly withdraw their enrolment by the census date, their provider is within its right to charge that student for the student contributions/tuition fees for that unit(s), regardless of whether the student chose not to attend any classes, changed their mind about studying that course, or chose not to submit any assessment items/sit the exam.
A provider’s withdrawal procedures and administrative processes must support their students being able to withdraw by the census date. For example, if a provider requires that an exit interview with the student is necessary, they must ensure they are able to conduct this interview with the student prior to the census date. In-house administrative processes must not prevent a student from being able to withdraw their enrolment by the census date if they so wish.
However, it is equally important for students to make themselves aware of the withdrawal processes at their relevant provider, and to factor this process into their decision making regarding their studies.
SUBMISSIONS
CIRCUMSTANCES BEYOND A PERSON’S CONTROL
Mr Ibrahim argued that he had enrolled in the course on the understanding that he was able to undertake the program on a part-time basis. He claimed to have read this in a brochure advertising the course. He strenuously argued he had attempted to cancel his course before the census date as he had discovered on commencement of the course that it was not offered part-time.
Mr Ibrahim reiterated it would have been dangerous for himself and others if he had undertaken the course on a full-time basis, due to his commitments. Mr Ibrahim was employed on a full-time basis as a shift worker and was travelling to Canberra by bus each week to see his three children. Mr Ibrahim believed the Course Co-ordinator had a duty of care to ensure he only undertook flight training when it was safe to do so. Due to his commitments Mr Ibrahim would have been asleep behind the controls if he had attempted to undertake the course on a full-time basis.
Mr Ibrahim contended he had discontinued the course before the census date as he had verbally informed both the Course Co-ordinator and Secretary of the Point Cook campus that he could not undertake the course on a full-time basis. He reiterated that he had never undertaken any flights and could not access the Point Cook facility as he had never been issued with an access card. Further, Mr Ibrahim contended that he had been contacted by the Secretary at the Point Cook campus requesting he return the learning materials and access card he had been issued arguing if he had not withdrawn from the course, why were RMIT requesting these be returned, particularly as he had never been issued with the access card.
Mr Ibrahim stated he was having trouble discontinuing the course online, because of his own computer issues, as he only had access to a telephone and problems with RMIT’s network. Mr Ibrahim had sought assistance from student services prior to the census date and believed he had successfully withdrawn from the units in which he was enrolled.
Mr Ibrahim maintained he was advised he had to withdraw online via the Student Portal and that he had never been advised he could withdraw in writing. If he had been given this second option, Mr Ibrahim states he simply would have emailed his request to withdraw.
Ms Ervin, for the Secretary, contended that Mr Ibrahim’s difficulties with the enrolment cancellation process were not beyond his control; and did not make it impracticable for him to complete the requirements of the Units.
.
Ms Ervin contended that the Tribunal should not accept Mr Ibrahim’s assertions that his difficulties with the enrolment cancellation process prevented him from discounting before the census date, rely upon the following evidence. Mr Ibrahim’s own actions, in applying for a FEE-HELP loan on 29 March 2019, significantly, was:
(i) 1-2 weeks after he asserts that he verbally withdrew from the Course;
(ii) on the same day that he was advised that he would incur Course fees on 31 March 2019 and invited to apply for a FEE-HELP loan; and
(iii) prior to the 31 March 2019 census date
Ms Ervin argued that Mr Ibrahim’s difficulties with the enrolment cancellation process were not beyond his control within the meaning of the Administration Guidelines and section 104-30(1)(a) of the Act. Ms Ervin argued Mr Ibrahim had failed to take the necessary steps to cancel his enrolment in the units until after the census date, relying upon the following:
(a)records of interactions between Mr Ibrahim and the University which include a number of conversations and emails between him and Stefan of RMIT Connect indicating Mr Ibrahim had not attempted to withdraw from the Units or the Course until at least 11 April 2019. This is approximately two weeks after the census date for the Unit.
(b)records of interactions between Mr Ibrahim and the University on 11 April 2019 which indicate that he had been aware of the need to withdraw from the Units prior to the census date to avoid incurring a FEE-HELP debt, but 'didn’t and forgot to' take the necessary steps to do so.
(c)the first record of Mr Ibrahim requesting assistance to withdraw from the Units is dated 2 May 2019, more than a month after the census date for the Units.
(d)Regarding Mr Ibrahim’s assertion that the 'Course Co-ordinator' and the 'Secretary' failed to advise him to withdraw through Enrolment Online, that it was his responsibility to know, and follow the process for withdrawing his enrolment. Like all students of the University, Mr Ibrahim was required to follow all University policies and to acknowledge at the time he enrolled in the Course that he would do so. It was his responsibility to know and follow the University's 'Change or cancel your enrolment' policy and the University's 'Enrolment processes - February 2019' which required students to use Enrolment Online to withdraw their enrolment and not the responsibility of University staff to advise him of the process.
(e)Mr Ibrahims assertion that the 'Course Co-ordinator' and the 'Secretary' advised him to contact student services in relation to withdrawing his enrolment, and student services assisted him to withdraw his enrolment using Enrolment Online, was inconsistent with Mr Sohi's response to the University's inquiries:
The student did contact the Point Cook admin team with a request of leaving the program, but this was post census and put into contact with the relevant staff that could assist.
Mr Ibrahim reiterated that he had family and personal issues that were beyond his control and were causing him extreme hardship and distress. Mr Ibrahim advised that he had no capacity to pay repay his FEE-HELP and saw it as fundamentally unjust, as he should not pay for a service he had not received. His Doctor had provided advice about his family situation, in which it was indicated that 'stress due to family/personal reasons and sleep deprivation as consequence of family circumstances', resulted in Mr Ibrahim being unable to perform a task requiring intense concentration for a period of 1-2 hours. This was reported from 4 March 2019 to be 'ongoing'.
Mr Ibrahim contended that he was required to work long hours to support his children, who had moved with their mother to Canberra. Further, that his son had recently been diagnosed with special needs and this required him to travel to Canberra weekly to assist with his numerous medical, allied health and school appointments. He travelled from Melbourne to Canberra via bus and spent the night in dorm-like accommodation, as that was all he could afford. Mr Ibrahim would return to Melbourne by bus in time for his next shift. Mr Ibrahim argued this situation had only arisen recently, was unusual and beyond his control.
Ms Ervin argued that paragraph 3.5 of the Administration Guidelines provides that, in order for circumstances to be considered beyond a person's control, they must be 'unusual, uncommon or abnormal' and they must be something that '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'. Ms Ervin contended Mr Ibrahim’s financial and family circumstances, insofar as they impacted his enrolment in the Units, were within his control, as these circumstances were longstanding and it was within his control to either not enrol in the Units or to withdraw from the Units prior to the census date.
Ms Ervin drew the Tribunal’s attention to previous determinations which considered that circumstances would not be beyond an applicant's control:
a)where the applicant was aware of their circumstances, either pre-enrolment or before the census date, and therefore made a choice to enrol, or to not withdraw before the census date, and assumed the risk that their circumstances might impact their studies, on the basis that the applicant's incurring of a FEE-HELP debt arisen due to their action or inaction within the meaning of the Administration Guidelines.
b)where the applicant's circumstances have existed for an extended period of time, such that they are not unusual, uncommon or abnormal for that applicant within the meaning of the Administration Guidelines.
Ms Ervin argued Mr Ibrahim’s financial and family circumstances had arisen by the time the he commenced the Units and existed before the census date, as Dr Pang had identified in the impact assessment statement.
Therefor Ms Ervin contended Mr Ibrahim’s financial and family circumstances were not beyond his control within the meaning of the Administration Guidelines and section 104-30(1)(a) of the Act. She argued, consistently with previous decisions of the Tribunal, that Mr Ibrahim assumed the risk that his financial and family circumstances might impact his studies. Further, that he incurred a FEE-HELP debt due to his inaction in not withdrawing from the Units before the census date and further contended his financial and family circumstances were not unusual, uncommon or abnormal for him in the sense contemplated by the Administration Guidelines.
CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
Mr Ibrahim argued he had withdrawn before the census date and that he had been advised that his course had been cancelled. He relied upon the witness statement of Ms Pamela Leone.
Ms Ervin contended that even if Mr Ibrahim had verbally indicated a possibility of withdrawing from the Course or the Units prior to the census date, he failed to take any steps to withdraw until over a month after the census date. Accordingly, she argued Mr Ibrahim’s difficulties with the enrolment cancellation process made their full impact on him after the census date for the Units. Those difficulties had no impact on his capacity to withdraw from the Units before that date because he did not attempt to withdraw from the Units in the manner prescribed by the University until after the census date.
Ms Ervin contended that Mr Ibrahim’s financial and family circumstances had their full impact on him by the time the course commenced and well before the census date. Mr Ibrahim had not provided any evidence, nor made any arguments, that his financial and family circumstances did not have their full impact on him until on or after the census date of 31 March 2019. To the contrary, she argued the impact assessment statement completed by Dr Pang stated Mr Ibrahim’s financial and family circumstances impacted him from 4 March 2019, the date the course commenced. Additionally, she argued Mr Ibrahim’s financial and family circumstances had their full impact on him before the census date, as he had advised 'the Course Co-ordinator and the Secretary' in the week commencing 18 March 2019, that he wished to withdraw from the Course because of his family and financial circumstances.
Therefore, Ms Ervin contended as Mr Ibrahim has not provided any evidence that his financial and family circumstances changed after the census date, or that their full effect did not become apparent until after the census date to demonstrate he satisfied section 104-30(1)(b) of the Act. Whilst she recognised, that the Administration Guidelines state, that a person's circumstances may be found to have their full impact on or after the census date if they exist before the census date, there again was no evidence from Mr Ibrahim to corroborate this was the case.
CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS
Again, Mr Ibrahim argued he had withdrawn before the census date and his family and financial circumstances were worsened by his son’s recent diagnoses of special needs. The full impact of this had not been felt when he had sought to enrol in the course.
Ms Ervin argued that Mr Ibrahim had not identified any aspect of his difficulties with the enrolment cancellation process that made it impracticable for him to complete the requirements of the Units. Accordingly, she contended that Mr Ibrahim's difficulties with the enrolment cancellation process did not make it impracticable for him to complete the requirements of the Units.
Further she contended that any difficulties Mr Ibrahim had with the enrolment cancellation process did not impact his capacity to withdraw from the Units prior to the census date, as he did not attempt to withdraw from the Units until after that date.
Ms Ervin noted the Administration Guidelines provide that family circumstances and employment-related circumstances can make it impracticable for a person to complete the requirements of a unit. However, subparagraphs 3.15.1(b) and (c) of the Administration Guidelines requires that family circumstances must be 'unforeseen' and that employment-related circumstances involve a change that is beyond the person's control and makes the person unable to continue their studies.
Ms Ervin argued there was Tribunal guidance on what was considered special circumstances and took the Tribunal to the matter of Ullah and Secretary, Department of Education and Training [2018] AATA 2159, where the Tribunal considered whether an applicant's circumstances, namely the ill-health of his wife and newborn daughter, and the need to return to a remote part of Pakistan to obtain family support and assistance, constituted special circumstances as defined in section 104-30 of the Act. The Tribunal stated at [36]:
..In my view none of the matters canvassed made it impracticable for Mr Ullah to continue his studies. Mr Ullah's problems with his studies certainly made it more difficult for him to succeed, but they did not make it impracticable to continue, and he acknowledged during the hearing that although internet access in his village was limited, it was not so limited as to make it impossible for him to continue his studies. His loss of employment when he left Pakistan no doubt reduced his income, but did not prevent him from studying. His wife's health, as noted above, did not, on the evidence available to me, change significantly after the census date and so there is no evidence that it had an impact on his ability to study…
Similarly, in Georgiou and Secretary, Department of Education and Training [2019] AATA 170 the Tribunal stated at [20]:
…I accept that the situation in early 2013 was unfortunate for Mr Ibrahim 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 Mr Ibrahim 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...
Ms Ervin contended, consistently with the approach of the Tribunal in Ullah and Georgiou, that Mr Ibrahim had not provided any evidence that demonstrated how his financial and family circumstances, or his difficulties with the enrolment cancellation process, resulted in him being unable to complete the requirements of the Units or it being unreasonable to expect him to do so.
CONSIDERATION
The Tribunal was very sympathetic to Mr Ibrahim’s situation of seeking to undertake further study to gain a technical qualification to help support his family. Equally, the Tribunal was cognisant of Mr Ibrahim’s difficult family and financial situation - juggling shift work, travelling to Canberra to fulfil his parental responsibilities, the undoubted stress caused by his large FEE-HELP debt and his already strained financial circumstances.
The Tribunal was concerned by RMIT’s lack of duty-of-care shown to students applying to undertake a course which carries substantial fees and obvious occupational health and safety concerns, given a major part of the course is to undertake flying lessons. There appeared to be no consultation prior to Mr Ibrahim’s enrolment or during the early weeks of March to explore with him, his capacity to undertake such a course in a safe manner. The numerous file notes all demonstrate Mr Ibrahim was expressing his concern with his capacity to safely fulfil the requirements of the course. But it does not appear anyone, particularly the staff at the Point Cook Campus provided any counsel about his suitability to undertake such a course, particularly whilst performing full time shift work and travelling interstate by public transport each week. The Tribunal concurred with the following file note which indicate student services had assisted Mr Ibrahim with his administrative process, but no one thought to address the genuine issue of whether it was actually safe for Mr Ibrahim to undertake the course.
Put him in a plane and he was falling asleep. Realised after the census date not for him. Went above and beyond for him re administration processes.
Additionally, the Tribunal is concerned with the review process in general, as individuals seeking reimbursement of fees must seek a second-tier review from the institution, delegated by the Department, which will ultimately suffer from the loss of revenue. This was particularly evident in Mr Ibrahim’s case, as it would appear to the Tribunal the significant cost of the course was in the delivery of flying lessons, none of which Mr Ibrahim undertook and for which no expense has been incurred by RMIT.
Were the circumstances beyond Mr Ibrahim’s control?
The Tribunal is sympathetic to the fact Mr Ibrahim never took a flight or undertook any study in his diploma. However, this is not a relevant consideration as he incurred the FEE-HELP debt when he applied for FEE-HELP assistance on 29 March 2019. At that stage the Commonwealth made a loan to him, which it paid directly to RMIT to discharge his liability for his full fee tuition for each unit of study in which he was enrolled.
The Tribunal finds Mr Ibrahim’s enrolment was within his control, as demonstrated by his email of 5 February 2019 advising he was keen to enrol and commence the course but was having issues with his passport. Further, that Mr Ibrahim was aware of his requirements in relation to how to enrol in and withdraw from academic units, having received sufficient written information and verbal advice from RMIT. RMIT records and confirmation of enrolment dated 7 February 2019 shows that on 6 February 2019 Mr Ibrahim had successfully enrolled in 4 units towards his diploma. In doing so, Mr Ibrahim declared that he was aware of his obligations in relation to fees and charges arising from enrolment.
Further, on 6 February 2019, Mr Ibrahim completed and signed a ‘Request for SA-HELP loan application’ for his Services and Amenities Fees (SSAF) at RMIT. Subsequently on 29 March 2019, Mr Ibrahim completed and signed a FEE-HELP Assistance RMIT form. That form required Mr Ibrahim to acknowledge that he had read the FEE-HELP Information Booklet and was aware of his debt and payment obligations if he received FEE-HELP assistance. The booklet clearly explained that any request for withdrawal from a unit had to be done in accordance with the University policy. It also outlined the consequences of not withdrawing by the census date and the meaning of “special circumstances” as used in the Act.
Additionally, Mr Ibrahim was made aware via the material provided that to avoid any financial penalties, he was required to withdraw from his course prior to census date in accordance with the process of his institution. The FEE-HELP booklet he was required to read to be eligible for the loan stated:
To withdraw from a unit or course without getting a HELP debt or forfeiting an upfront payment, you need to complete your provider’s formal withdrawal process by the census date.
RMIT student advice he was required to read stated:
If you want to cancel your enrolment
If you want to withdraw completely from your studies then you must cancel your Program. We recommend that you seek academic advice before you proceed. If you are experiencing difficulties the University offers a range of support services. You may also wish to consider taking a break from study rather than completely.
Before you cancel please ensure you read and understand the following:
• Financial liability - if you do not officially cancel your program by the relevant census date you will remain liable for all fees, even if you are no longer attending classes. This includes tuition, SSAF and administrative fees. If you have a HELP loan, e.g. HECS-HELP or FEE-HELP, or a VET Student Loan, you will still have to pay your fees if you cancel your program after the relevant census date.
How to cancel your program enrolment
Follow these steps to cancel your program online using Enrolment Online:
• Log in to Enrolment Online.
• Go to My student record.
• Select Cancel· program and follow the prompts.
The Tribunal finds that despite Mr Ibrahim’s claim to have cancelled his course prior to the census date there was no corroborating evidence that he had done so, the only record of his withdrawal from the course was on the student portal which indicated he had dropped 3 of the 4 units on 13 May 2019.
The Tribunal finds the sequence of events as outlined by Mr Ibrahim did not paint a picture which would indicate he had withdrawn by the census date. In his statement of 17 August 2019, Mr Ibrahim claims that:
I commenced the course after the start date in late March 2019. On my first day at the Point Cook Campus, I enquired about the possibility of part time study, given the above circumstances. As this was not available, and I acknowledged that I would not be able to work full time shift work, travel to Canberra once a week to see my children, attend medical appointments for my son who has medical issues, and balance this with study, I requested that the course be cancelled. I spoke to the course co-ordinator at Point Cook Flight school campus to cancel. I also advised the secretary at the campus that I could not continue and that I needed to cancel. This was prior to the census date. I was not advised by the Co-ordinator or the Campus Secretary that I would need to complete any online forms.
Then, in his application to the AAT dated 6 November 2019 he states:
The course cancellation was also made verbally to the Secretary and the Course Co-ordinator at the Point Cook campus on week 3 of the first semester. I was under considerable personal stress at the time, but persisted with the cancellation and do believe that I followed the right process
According to Mr Ibrahim’s account, this would mean he had verbally cancelled his enrolment in the week of 18 March 2019. However, this seems completely at odds with his actions, as he subsequently applied for FEE-HELP on 29 March 2019. The following email sent to Mr Ibrahim on 29 March 2019 indicates he has not completed his enrolment as he has outstanding fees:
On 29 March 2019 RMIT Connect sends a reply email to Mr Ibrahim advising he has successful completed a SA-HELP loan application for his Services and Amenities Fees (SSAF), but he currently has tuition fees outstanding for enrolments with a census date of 31 March 2019
The Tribunal finds that if Mr Ibrahim was intending to cancel his enrolment in the week of 18 March, he needed to take no further action, as his enrolment in the course would have been cancelled as he had not paid the upfront fees. Instead, Mr Ibrahim sought FEE-HELP assistance to secure his enrolment.
The Tribunal accepts that Mr Ibrahim had spoken to the staff at Point Cook prior to the census date to cancel his enrolment in the program, as evidenced by statements from staff at the campus. The Tribunal is not able to conclude if Mr Ibrahim had or had not been able to verify if his place in the course had been cancelled verbally. Regardless of this his own actions, Mr Ibrahim demonstrated he had not sought to cancel his enrolment in the 4 units prior to the census date.
The Tribunal is concerned by the tight timeline of RMIT’s enrolment and discontinuation, for full fee-paying courses as students appeared to have until 31 March to finalise enrolment and cancel enrolment. This would appear to the Tribunal to be open to confusion and did not allow a student sufficient time to determine if their chosen course was indeed right for them, or that they had the capacity to fulfil the course requirements.
The Tribunal finds that whilst Mr Ibrahim’s family and financial situation were beyond his control, his difficulty with the enrolment process was not. Therefore, the Tribunal is not satisfied that Mr Ibrahim meets the requirements of section 104-30(1)(a) of the Act.
Did the circumstances make their full impact on Mr Ibrahim on or after the census date?
The Tribunal is not satisfied that Mr Ibrahim’s circumstances made their full impact on him until on or after the census date of 31 March 2019. As Mr Ibrahim’s general practitioner wrote and Mr Ibrahim acknowledged his family, work and financial situations were known at the time he enrolled in the course and when he subsequently applied for the FEE-HELP support. He suffered from his family, work and financial situations when he enrolled in the units of study and before the relevant Census Dates; and he continues to suffer from them. Whilst they may be beyond his control, they cannot be said to have not made their full impact until after the relevant Census Dates.
Additionally, while the Tribunal accepts that Mr Ibrahim’s circumstances occurred before the census date for RMIT, it is not satisfied on the evidence before it that they worsened after that day.
Therefore, the Tribunal is not satisfied that that Mr Ibrahim meets the requirements of section 104-30(1)(b) of the Act.
Did the circumstances make it impracticable for Mr Ibrahim to complete the requirements of the Units?
The Tribunal is satisfied that Mr Ibrahim’s circumstances made it impracticable for him to complete the Units during the relevant period of study in 2019. The Tribunal considers that Mr Ibrahim’s evidence of his work and family commitments would have made it impractical and indeed dangerous, for him to complete the 4 units for which he was enrolled. However, noting subparagraphs 3.15.1(b) and (c) of the Administration Guidelines, which require that family circumstances be 'unforeseen' and that employment-related circumstances involve a change that is beyond the person's control and that makes the person unable to continue their studies, the Tribunal determines Mr Ibrahim had not meet section 104-30(1)(c) of the Act.
The Tribunal referrs to the decision of Deputy President Forgie in Zabaneh and Secretary, Department of Education and Training [2016] AATA 569, where she found at [45]:
…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). "Impracticable" means "... not able to be done".[39] On the evidence, it might have been difficult for him to do so but the circumstances on which Mr Zabaneh relies were not such that completion of the requirements of the four units of study was not able to be done...
Based on the evidence before the Tribunal, it was satisfied that Mr Ibrahim’s work, family and financial circumstances made it impracticable for him to continue studying or to complete the Units during the relevant period of study in 2019. The circumstances demonstrated that completion of the requirements for the Units was 'not able to be done’. However, as his family circumstances were not unforeseen and his work circumstances had not changed, Mr Ibrahim did not satisfy the requirements of section 104-30(1)(c) of the Act.
CONCLUSION
Pursuant to section 104-30 of the Act and Chapter 3 of the Administration 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 Tribunal finds Mr Ibrahim had not withdrawn from his units prior to the census date.
The Tribunal finds that Mr Ibrahim’s circumstances as a whole were not beyond his control; his circumstances made their full impact before the census date; and did not satisfy the requirements of the Act to make it impracticable for him to complete the requirements for the Units of study at RMIT.
The Tribunal is therefore satisfied that Mr Ibrahim’s circumstances do not amount to special circumstances, as required under section 104-25(1)(c) of the Act, in order for Mr Ibrahim’s FEE-HELP balance to be re-credited with an amount equal to the amount of FEE-HELP assistance he received for the Units of study at RMIT.
The Tribunal is aware that this decision will have significant financial implications for Mr Ibrahim and would recommend he explore options with the ATO in setting up a payment plan or deferral of payment. As a last resort he can apply to the Department of Finance for a waiver as outlined in the 2019 CSPs and HELP Handbook.
Setting up a payment plan If a person owes a debt to the ATO which includes a compulsory repayment or overseas levy repayment and they can’t pay on time, the ATO may allow the client to enter into a payment plan to pay their debt in instalments. A payment plan must be negotiated directly with the ATO, go to Deferring a repayment for the year If a person believes that making their compulsory repayment would cause them serious hardship or there are other special reasons why they should not have to make a compulsory repayment, they can apply to the ATO to have that amount (or part of it) deferred. To do this, the person will need to complete a Deferring your compulsory repayment or overseas levy form. The form will ask the person for a detailed statement of their household income and expenditure to justify their claim of serious hardship. Additional information and the application form can be found at The ATO will advise the person of its decision in writing within 28 days of receiving that person’s application. If a person is unhappy with the ATO’s decision, they may apply to the ATO (within 28 days after the day they receive notice of the decision) to have it reviewed. If the person is still unhappy with the ATO’s decision following the internal review, they may then apply to the Administrative Appeals Tribunal (AAT) to request an external review. The person must lodge their application with the AAT within 28 days after the day they receive the ATO’s letter advising them of the outcome of its internal review. The ATO can provide more information regarding this process
Waiving (or cancelling) HELP debts A waiver is a special concession, granted to a person or organisation as a last resort, which extinguishes a debt owed to the Commonwealth. This means that the debt is completely forgiven and can no longer be recovered. The waiver of debt power is discretionary, which means there is no situation that creates an automatic entitlement to a waiver of debt. The waiver of debt mechanism is generally not used where other viable avenues of redress are available – such as the special circumstances provisions, grievance processes, and internal or external review mechanisms. For more information on this process, search ‘waiver of debt’ on the Department of Finance website
DECISION
The Tribunal finds that Mr Ibrahim does not meet the requirements of s 104-25(1) of the Act, and as such he is not entitled to have his FEE-HELP balance re-credited. Therefore, the decision of the RMIT University, acting on behalf of the Secretary of the Department, dated 10 October 2019 is affirmed.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decisions herein of Ms Anna Burke AO, Member.
……………....[sgd].........................
Associate
14 October 2020
Date of Hearing: 31 July 2020 Date of final submission: 5 September 2020 Applicant: Self-represented Advocate for the Respondent: Ms Kate Ervin Solicitors for the Respondent: Clayton Utz
Key Legal Topics
Areas of Law
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Administrative Law
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Employment Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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Remedies
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Jurisdiction
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