Jones and Secretary, Department of Education
[2016] AATA 909
•15 November 2016
Jones and Secretary, Department of Education [2016] AATA 909 (15 November 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3560
Re
Evan Jones
APPLICANT
And
Secretary, Department of Education
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 15 November 2016 Place Brisbane I affirm the decision under review.
................................[sgd]........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
HIGHER EDUCATION SUPPORT – FEE-HELP – application for re-crediting – special circumstances – circumstances not beyond the applicant’s control – decision under review affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 104-25, 137-10
CASES
Re Ladybird Children’s Wear Pty Ltd and Department of Business and Consumer Affairs (1976) 1 ALD 1
SECONDARY MATERIALS
Higher Education Support Act 2003 – Administration Guidelines 2012
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
15 November 2016
INTRODUCTION
This is an application for a review of a decision of the University of Queensland (“the University”) to refuse an application of Mr Evan Jones (“the applicant”) to have his FEE-HELP balance re-credited for a unit of study.
FACTS
On 5 February 2014, the applicant enrolled in a unit of study: ‘Strategic Human Resources Management’ (“the unit”) for the first semester period.[1]
[1] Exhibit A, T-Documents, T7.
On 19 March 2014, the applicant went overseas for a secondment. The secondment was originally only scheduled for one month but was extended to 14 October 2015.
On 28 April 2014, the applicant withdrew from the unit.[2] This was four weeks after the census date for the unit, namely 31 March 2014.[3]
[2] Exhibit A, T-Documents, T9.
[3] Exhibit A, T-Documents, T3.
On 18 March 2015, the applicant made an application for remission of the unit fee.[4]
[4] Exhibit A, T-Documents, T11.
On 1 May 2015, the Academic Registrar of the University declined the application.[5] On 27 May 2015, the applicant sought an internal review of the decision.[6]
[5] Exhibit A, T-Documents, T13.
[6] Exhibit A, T-Documents, T14.
On 18 June 2015, the University confirmed its decision of 1 May 2015.[7] On 15 July 2015, the applicant applied to this Tribunal for a review of the University’s decision.
[7] Exhibit A, T-Documents, T1.
LEGISLATIVE FRAMEWORK
Section 137-10(1) of the Higher Education Support Act 2003 (Cth) (“the Act”) provides that a person incurs a FEE-HELP debt to the Commonwealth if the Commonwealth makes a loan to the person and uses the amount leant to make a payment in discharge of the person's liability to pay their tuition fee for a unit of study.
Section 137-10(3) of the Act provides that the FEE-HELP debt is incurred by a person immediately after the census date for the unit. Therefore, no FEE-HELP debt is incurred if a person withdraws from a unit prior to the census date.
Section 104-25(1) of the Act provides for the re-crediting of a person’s FEE-HELP balance in limited circumstances:
(1) A higher education provider must, on the * Secretary's behalf, re-credit a
person's * FEE-HELP balance with an amount equal to the amounts of * FEE-
HELP assistance that the person 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
FEE-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.
Section 104-30(1) of the Act provides:
(1) For the purposes of paragraph 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.
Chapter 3 of the Higher Education Support Act 2003 – Administration Guidelines 2012 (“the Administration Guidelines”) specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person. Chapter 3.5.1 provides:
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.
Chapter 3.5.5 provides that the situation must be unusual, uncommon or abnormal.
Chapter 3.10.1 provides:
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.
Chapter 3.15.1 provides:
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.
ISSUES
The sole issue for consideration is whether special circumstances apply to the applicant within the meaning of s 104-30(1) of the Act. If I am satisfied that special circumstances apply, the applicant is eligible for a re-crediting of his FEE-HELP balance in accordance with s 104-25(1) of the Act.
CONTENTIONS
Applicant’s contentions
The applicant contends that special circumstances apply because he was required to complete an overseas secondment. He states that his work situation was beyond his control because his employer would have made him redundant had he declined to go on the secondment.
The applicant contends that he was one of only two employees in Australia who had the necessary skills to undertake the secondment. The other employee could not do so due to personal reasons.
The applicant contends that the secondment did not have its full impact on him until after the census date. He states that he believed he would have been able to complete the unit but for the secondment being extended after the census date.
The applicant contends that it was impracticable for him to complete the requirements of the unit during the semester. The basis for this submission is that the course was based around group discussions. The applicant contends that he could not participate in these discussions when he was overseas.
Respondent’s contentions
The respondent contends that the applicant has not produced sufficient evidence to support his contentions that: he was compulsorily seconded; he would have been made redundant had he declined the secondment; or that he would have been made redundant had he declined to extend his secondment. The respondent notes that the material obtained from the applicant’s employer under summons does not support any of the above.
The respondent contends that the applicant was able to choose whether he undertook the secondment. In support of this contention, the respondent noted how the applicant’s colleague did not accept the secondment due to personal reasons.
The respondent contends that the applicant was able to choose whether the secondment was extended. In support of this contention, the respondent noted the letter from the employer indicates that the secondment could be further extended upon “mutual agreement”.[8]
[8] Exhibit A, T-Documents, T15 at p. 128.
The respondent concedes that the relevant circumstances made their full impact on the applicant after the census date. The respondent also concedes that the applicant’s presence overseas made it impracticable for him to complete the requirements for the unit.
CONSIDERATION
Are the circumstances that apply to the applicant beyond his control?
The first and most contentious issue is whether the circumstances that apply are beyond the applicant’s control. Chapter 3.5.1 of the Administration Guidelines provides 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”.
Chapter 3.5.5 provides that the situation must be unusual, uncommon or abnormal. It is undisputed that the applicant was unable to complete the unit because he was completing an overseas secondment. This secondment was originally for approximately a month but was extended for several months. I am satisfied that relocating overseas for an employment opportunity is an uncommon situation.
I am required to consider whether a reasonable person would consider the applicant’s secondment and its extension were due to his action or inaction and whether he is responsible. I consider that this question is dependent upon whether or not the applicant’s secondment was compulsory or optional. In other words, would the applicant have ceased to have employment if he declined either the secondment or the extension of the secondment?
In support of his application the applicant lodged a letter from his employer addressed to him concerning the extension of his secondment. The letter did not make reference to the applicant being obligated to accept the extension of the secondment. The letter relevantly states:[9]
We are very happy that you will be undertaking this challenging role and believe that this will provide you with a significant professional development opportunity.
[9] Exhibit A, T-Documents, T15 at p. 128.
On 14 March 2016, the respondent summonsed the employer of the applicant to produce all documents that record or relate to the circumstances in which the applicant was seconded, including all documents which record the circumstances in which the secondment was subsequently extended.[10] These summonsed documents include: a correspondence between the employer’s regional offices; correspondence outlining secondment details; and correspondence outlining the extension of the secondment. None of these materials make reference to the applicant being obligated to accept the secondment or its extension.
[10] Exhibit C, Summonsed Documents.
The applicant’s oral assertions that he would have ceased to have employment if he declined either the secondment or its extension are uncorroborated by the documentary evidence. However, the documentary evidence supports the respondent’s contention that the secondment and its extension were optional and pursued because they offered “a significant professional development opportunity”.[11]
[11] Exhibit A, T-Documents, T15 at p. 128.
While the applicant does not bear an onus of proof,[12] I cannot be satisfied that the applicant would have ceased employment if he declined either the secondment or the extension of the secondment. Nor am I satisfied that he believed this to be the case when he accepted the secondment or the extension. Therefore, I cannot find that there are circumstances that are beyond the applicant’s control.
[12] See Re Ladybird Children’s Wear Pty Ltd and Department of Business and Consumer Affairs (1976) 1 LAD 1 at 5.
I am not required to consider the other requirements of s 104-30(1) of the Act as I am not satisfied that there are circumstances that apply to the applicant beyond his control.
CONCLUSION
Special circumstances within the meaning of s 104-30(1) of the Act must apply for the applicant’s FEE-HELP balance to be re-credited. I am not satisfied on the balance of probabilities that the applicant’s secondment or the extension of that secondment were beyond his personal control. The documentary evidence does not support his assertion that he would have ceased to have employment had he declined the offer of a secondment or an extension of that secondment. I cannot find that special circumstances apply as the change in the applicant’s employment arrangements were not beyond his control.
DECISION
I affirm the decision under review.
I certify that the preceding 34 (thirty - four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ................................[sgd]........................................
Associate
Dated 15 November 2016
Date(s) of hearing 2 August 2016 Applicant By telephone 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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Statutory Construction
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Remedies
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