Kamal Hewawasam Revulge and Secretary, Department of Education
[2015] AATA 70
•10 February 2015
[2015] AATA 70
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3345
Re
Kamal Hewawasam Revulge
APPLICANT
And
Secretary, Department of Education
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 10 February 2015 Place Melbourne The Tribunal affirms the decision under review.
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Regina Perton, Member
HIGHER EDUCATION – student enrolled for post graduate course – request for leave of absence for semester – application deemed lodged after census date – leave of absence granted – fees imposed – whether grounds to re-credit entitlements – special circumstances – Ministerial guidelines – decision affirmed.
Higher Education Support Act 2003 ss 101-1, 104-1, 104-20, 104-25, 104-30, 107-10, 238-10
Higher Education Support Act 2003 – Administration Guidelines 2012, Chapter 3
REASONS FOR DECISION
Regina Perton, Member
10 February 2015
Kamal Hewawasam Revulge enrolled for a Masters of Social Science (Criminal Justice Administration) at RMIT University (RMIT) on 22 January 2013. He enrolled for four units in Semester 1 2013. Postgraduate students undertaking a course such as the one selected by Mr Hewawasam Revulge are required to pay full tuition fees. However, Australian citizens and permanent residents are able to seek financial assistance via a loan program where payment is deferred until the person earns a minimum nominated amount and repays the loan over a period of time. This is known as the FEE-HELP scheme.
For various reasons, Mr Hewawasam Revulge decided to seek leave of absence for the first semester of 2013. Hence he tried to cancel his enrolment for Semester 1 to ensure he was not charged with fees for his four units. Unfortunately, his attempt to do so was unsuccessful due to its timing and Mr Hewawasam Revulge has incurred a debt for the four units even though he was later given leave of absence for those subjects in Semester 1 2013.
If a person is enrolled in a unit which he does not undertake but from which he has failed to withdraw by a specified census date, he will incur the FEE-HELP debt associated with those subjects. In limited circumstances, the FEE-HELP debt for those units can be cancelled.
Mr Hewawasam Revulge resumed his enrolment in the course in Semester 2 of 2013. On 3 September 2013 Mr Revulge applied to RMIT to re-credit his FEE-HELP balance but RMIT declined to do so. He applied for an internal review on 6 December 2013 but the review officer affirmed that decision. In its processing of Mr Hewawasam Revulge’s request, RMIT was acting on behalf of the Secretary, Department of Education (the respondent).
The issue for the Tribunal is whether the debt for the subjects for which Mr Hewawasam Revulge enrolled in Semester 1 2013 can be cancelled and in particular, whether there are special circumstances that can be considered to ameliorate the situation in which Mr Hewawasam Revulge has found himself.
LEGISLATION & MINISTERIAL GUIDELINES
Section 101-1 of the Higher Education Support Act 2003 (the Act) describes FEE-HELP assistance:
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.
Subsection 104-1(1) sets out who may access FEE-HELP and when:
(1)Subject to this section and sections 104-2, 104-3 and 104-4, a student is entitled to FEE-HELP assistance for a unit of study if:
(a)the student meets the citizenship or residency requirements under section 104-5; and
(b)the student's FEE-HELP balance is greater than zero; and
(c)the census date for the unit is on or after 1 January 2005; and
(d)the student is not a Commonwealth supported student in relation to the unit; and
(e)the unit meets the course requirements under section 104-10; and
(f)the unit:
(i) is, or is to be, undertaken as part of a course of study; or
(ii) is a unit access to which was provided by Open Universities Australia; or
(iii) is part of a bridging course for overseas-trained professionals; and
(g)the student:
(i) enrolled in the unit on or before the census date for the unit; and
(ii) at the end of the census date, remained so enrolled; and
(h)the student meets the tax file number requirements (see section 187-1); and
(i)the student has, on or before the census date:
(i) if access to the unit was provided by Open Universities Australia--completed, signed and given to an appropriate officer of Open Universities Australia a request for Commonwealth assistance in relation to the unit; or
(ii) in any other case--completed, signed and given to an appropriate officer of the higher education provider a request for Commonwealth assistance in relation to the unit or, where the course of study of which the unit forms a part is, or is to be, undertaken with the provider, in relation to the course of study.
There is a limit set as to the amount of FEE-HELP assistance to which a student is entitled (ss 104-20 and 107-10).
Section 104-25 sets out the circumstances in which a person’s FEE-HELP balance can be re-credited.
…
(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)…
(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
What constitutes special circumstances is set out in ss 104-30(1) and (2) of the Act:
(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 during the period during which the person undertook, or was to undertake, the unit.
(2)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.
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Section 238-10(1) of the Act allows the Minister to issue guidelines. The Ministerial guidelines, namely Higher Education Support Act 2003 – Administration Guidelines 2012 (Administration Guidelines), provide the following directions on the meaning of special circumstances in the Act:
3.1 PURPOSE
3.1.1The 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).
…
3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1A 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.
3.5.5This 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
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.
3.15CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS
3.15.1A 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.
WHAT HAPPENED AFTER ENROLMENT?
Mr Hewawasam Revulge enrolled on-line in the units in the course on 22 January 2013. He also applied for FEE-HELP assistance which was granted on 29 January 2013.
On Thursday 28 March 2013 Mr Hewawasam Revulge attempted to apply for leave of absence from the course for Semester 1 2013. The census date was 31 March 2013, Easter Sunday. RMIT’s administration was not open on Friday 29 March 2013, being Good Friday.
In written and oral evidence, Mr Hewawasam Revulge said that he arrived at RMIT about noon. He stated that he mistakenly went to RMIT’s Info Corner, a centre handling queries from prospective students. He took a numbered ticket, a copy of which was tendered. Mr Hewawasam Revulge was re-directed to The Hub, which deals with current students.
Mr Hewawasam Revulge stated that he submitted his application for leave of absence to a lady officer at The Hub upon being told by her to do so. He stated that he believed he had applied appropriately. Mr Hewawasam Revulge stated that the officer at The Hub had telephoned the relevant faculty at least four times without success before telling him to leave the documents with her to be sent to the relevant office. Mr Hewawasam Revulge stated that RMIT’s administration was to blame for the situation he found himself in.
Written and oral evidence was provided by Ms Pallekankanamge who had travelled to the city with Mr Hewawasam Revulge. In her oral evidence, she was unable to confirm details of Mr Hewawasam Revulge’s conversation with the RMIT officer at The Hub as she was not standing close enough to the counter to hear all the details.
On 3 April 2013 Mr Hewawasam Revulge forwarded an application for leave of absence to the Justice and Legal Studies (Higher Education) email address with a covering note in which he stated:
I was away overseas attending my personal and family matters for last month and I could not attend to classes. Therefore, I submit my leave of absence form for your consideration and wish to follow the program in next semester.
As my RMIT e-mail is not working for some reason, I could not withdraw from the program. I personally visited RMIT on the 28th of last month and at the UNI Hub officers instructed me to submit this form. As the university was closed until yesterday, I was unable to submit it before the census date.
...
On 16 April 2013 the Justice and Legal Studies faculty advised Mr Hewawasam Revulge that his application for leave of absence had been approved.
On 3 May 2013 Mr Hewawasam Revulge was issued with a Commonwealth Assistance Notice advising him that he had a FEE-HELP debt of $8,160 for Semester 1 2013.
On 8 July 2013 Mr Hewawasam Revulge attended The Hub to seek assistance with his RMIT email account to enable him to enrol for Semester 2 and there was a discussion regarding the debt he incurred for Semester 1 2013. There was further correspondence between Mr Hewawasam Revulge and RMIT officials with Mr Hewawasam Revulge forwarding the numbered RMIT ticket dated 28 March 2013 (referred to earlier).
On 3 September 2013 Mr Philip Donkin of RMIT sent an email to Mr Hewawasam Revulge:
…
I have reviewed the ticket dated 28 March 2013, which you use as part of your proof of visiting the Hub that day. This ticket is not from the Hub. It is from the Info Corner who use the same ticket system. I can confirm this due to the selection of Local Student Enquiries printed on the ticket. This selection is only used at the Info Corner, not at the Hub.
The Info Corner does not accept applications for leave of absence as Info Corner is a service for prospective students, not current students.
I am afraid that this ticket does not constitute any record of submission of your leave of absence application prior to the census date. The Hub logs interactions with students in a Customer Relationship Management database and does not have a record of you visiting on 28 March.
Your application for leave of absence which was emailed to the Justice and Law Admin Service Account after the census date of 31 March is the first recorded submission of the application…
Melinda Munday, Manager, Customer Service at RMIT, provided a statement dated 30 September 2014.
…
4. The Hub have a Customer Relationship Management system (‘CRM’) called RightNow. All interactions with a student who has taken a ticket from our queueing system at the City Hub in Building 12…or called the Hub Phone number are recorded in this database. This database has been searched and there is no record of any interaction with Kamal Hewawasam …on 28 March 2013…
5. Hub staff operate in accordance within RMIT policy and procedures as well as internal Hub processes…the Hub has a document outlining a checklist for each form that the Hub takes over the counter. This checklist is a list of all fields, information or evidence that needs to be included in order for the form to be accepted at the Hub…
6. The process for submitting a form at the Hub is the same regardless of the type of form. A student may submit a completed form at the Hub. Hub staff will check the form against our forms checklist document to ensure that all required information has been provided and that the form has been completed entirely. Any form that is identified as having missing or incomplete documentation or information will not be accepted. The student will then be told there is insufficient/missing information and advised on the steps to complete and return the form. The rationale for this is to provide protection to the student by not accepting incomplete forms;…We do not wish any student to be under the misunderstanding that the act of submitting a form to the Hub infers acceptance or approval of the process….
7. RMIT’s process for students applying for leave is spelled out on – RMIT’s website…
(a) the first paragraph “To take leave of absence from your program you need to complete an Application for leave of absence form…and gain approval from the school that administers your program prior to the enrolment deadline”…
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12. Had the Applicant attended the Hub and been served at the counter, his student number would have been taken and details of the interaction recorded in RightNow. The details would have included the fact that the LOA application was not accepted due to there being no school authorisation and details of the next steps. The form would have been returned to the Applicant without a date stamp to avoid any misunderstanding on behalf of the Applicant that the document had formally been lodged.
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ARE THERE GROUNDS TO RE-CREDIT THE FEE-HELP?
The situation faced by Mr Hewawasam Revulge is indeed unfortunate. He is liable to the Commonwealth for a FEE-HELP debt despite gaining leave of absence from his RMIT course. However, despite its sympathy for his plight, the Tribunal is required to make its decision based on the legislation and prescribed guidelines.
Mr Hewawasam Revulge believed that he would not be liable for any fees for Semester 1 having been given leave of absence. While RMIT has no record of his attendance on Thursday 28 March 2013, the Tribunal accepts his evidence that he attended RMIT on that day. It was the last working day before the census date. However, the Tribunal is also satisfied that Mr Hewawasam Revulge did not comply with RMIT’s instructions for gaining approval of leave of absence before the census date, namely approval by the relevant faculty. Being the last day before the Easter break, it is certainly possible that there was no one at the faculty office at the time he went to RMIT. Mr Hewawasam Revulge’s evidence was that it was around lunchtime. It was also his evidence that he did not go the faculty office at all but went to the Info Counter and The Hub. Mr Hewawasam Revulge’s email of 3 April 2013 seeking leave of absence is phrased in such a way that adds to the evidence that he did not apply to the faculty for approval of leave of absence before the census date.
Whether it was due to the absence of anyone at lunch time at the faculty office, followed by impatience or other clashing obligations on Mr Hewawasam Revulge’s part in not attempting to contact the faculty office later that afternoon or just the bad luck of waiting until the last day to seek leave of absence or his failure to comply with the required procedures, the Tribunal is satisfied on the balance of probabilities that there was no compliant leave of absence form accepted by RMIT prior to the census date.
To find that Mr Hewawasam Revulge meets the requirement of special circumstances under the Act (s 104-30), the Tribunal must find that the circumstances were beyond his control; that they did not make their full impact on him until on or after the census date for the units in question; and, that the circumstances made it impracticable for him to complete the requirements for the unit that he was to undertake. The Administration Guidelines set out the circumstances in which a person may meet each of these provisions. There is no general discretion as to what constitutes special circumstances as there is within certain provisions of social security legislation.
To be satisfied that Mr Hewawasam Revulge’s circumstances are beyond his control, the Tribunal must be satisfied that the situation is unusual, uncommon or abnormal (3.5.5 of the Administration Guidelines). Furthermore, the Tribunal must be satisfied that the circumstances in which he found himself did not arise due to his actions or inactions, either direct or indirect (3.5.1 of the Ministerial guidelines).
Mr Hewawasam Revulge failed to follow the mandatory procedures for seeking leave of absence. This is the reason for his failure to withdraw his subjects for Semester 1 2013 prior to the census date. It was unfortunate that he waited until the last day to seek leave of absence. Mr Hewawasam Revulge is not an unsophisticated young student who has not had any previous association with universities who would have been unaware of the need to follow procedures. He has been a student at various institutions in Australia and overseas as well as a lecturer overseas.
Mr Hewawasam Revulge told the Tribunal that he had been overseas between enrolment and 28 March 2013. He stated he had therefore been unable to attend classes at the start of the semester. When pressed for dates as to when he returned, he was unable to recall details. He acknowledged to the Tribunal that he knew the census date was 31 March 2013 when he attended at RMIT to seek leave of absence and also that he knew he needed to speak to the faculty to get approval for leave of absence.
Regardless of whether Mr Hewawasam Revulge left papers at RMIT’s Hub or not, it is clear that he did not apply in the prescribed manner for leave of absence before the census date.
The Tribunal finds that the circumstances which led to Mr Hewawasam Revulge’s failure to apply for leave of absence do not meet the criteria set out in the Act and the Administration Guidelines for waiver of the debt incurred as a result.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 32 (thirty‑two) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member ........................................................................
Associate
Dated 10 February 2015
Date of hearing 11 December 2014 Applicant In person Advocate for the Respondent Mr Shane Maundrell, Department of Education
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