Kanesbi and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 277
•8 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 277
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4289
GENERAL ADMINISTRATIVE DIVISION ) Re ZOLEYKHA KANESBI Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr S E Frost, Member Date8 April 2008
PlaceSydney
Decision The decision under review is affirmed.
..............[sgd]................................
Mr S E Frost
Member
catchwords
STUDENT ASSISTANCE – higher education support – extent of Tribunal’s review function – no power to examine grades awarded to student – re-crediting of Student Learning Entitlement – special circumstances – status of Student Learning Entitlement Guidelines – legislative instrument – whether Tribunal must make its decision in accordance with the Guidelines – special circumstances not established – decision under review affirmed
legislation
Higher Education Support Act 2003 – sections 2-1(d), 70-1, 73-15(1), 76-1(3), 79-1(1), 79-5, 206-1, Division 209, sections 212-1, 238-10(1)
Student Learning Entitlement Guidelines – paragraphs 5.1.1, 5.5.1, 5.5.5, 5.10.1
Legislative Instruments Act 2003 – section 5
cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
REASONS FOR DECISION
8 April 2008 Mr S E Frost, Member Introduction
1. Zoleykha Kanesbi is an undergraduate student at the University of Western Sydney (“UWS”, or “the University”). In the first semester of 2007 she was originally enrolled in five subjects (or units of study) in her Arts degree program but very early in the semester she withdrew from one of them. She withdrew from a second unit – Australian Politics – but this happened later in the semester, and in fact after the “census date” of 31 March 2007. As a result of this late withdrawal, UWS gave her an “E” grade (failed/discontinued) for that unit, and reduced her Student Learning Entitlement (“SLE”) as a consequence.
2. Mrs Kanesbi asked the University to substitute a “W” grade (withdrawn without penalty) and to re-credit her SLE. The University refused the request and Mrs Kanesbi has applied to the Tribunal for a review of the decision.
The issue
3. Although there was some confusion on Mrs Kanesbi’s part as to what the Tribunal was reviewing in her case, the only issue for me to determine is whether her SLE should be re-credited. The Tribunal has no power to examine the University’s allocation of the “E” grade that she was given, nor to substitute or even recommend an alternative grade.
The legislation
4. The relevant legislation is found in the Higher Education Support Act 2003 (“the Act”). One of the objects of the Act is “to support students undertaking higher education and certain vocational education and training": section 2-1(d).
5. Section 70-1 of the Act explains the SLE:
Student Learning Entitlement (or SLE) is needed for many of the forms of assistance under this Act. In these cases, units of study that a person enrols in must be covered by the person's SLE.
Broadly speaking, a person starts with an SLE equivalent to 7 years of full-time study. This is reduced as the person undertakes units of study as a Commonwealth supported student (but it can be re-credited in some circumstances).
6. Each unit of study has what is called an “EFTSL value”, which is determined by the higher education provider (in this case, UWS): subsection 73-15(1).
7. Division 76 of the Act explains when a person's SLE is reduced. In the normal case, a person's SLE is reduced if, at the end of the census date for a unit of study, the person is enrolled in the unit. The reduction takes effect immediately after the census date for the unit of study: subsection 76-1(3). The census date in this case was, as mentioned earlier, 31 March 2007.
8. A person’s SLE can be re-credited under Division 79 of the Act. Subsection 79-1(1) sets out the circumstances in which the higher education provider must, on the Secretary’s behalf, re-credit a person’s SLE with an amount equivalent to the EFTSL value of the unit of study. There are seven listed requirements in the subsection. It is accepted that in Mrs Kanesbi’s case, six of the requirements are met. The dispute between the parties is whether the seventh requirement is met. That requirement is the one in paragraph (c), namely that:
the provider is satisfied that special circumstances apply to the person (see section 79-5).
9. Section 79-5 then provides as follows:
(1)For the purposes of paragraph 79‑1(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 Student Learning Entitlement Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.
10. A refusal to re-credit a person’s SLE is a “reviewable decision” listed in section 206-1 of the Act. If a reviewable decision is reconsidered under Division 209 and the person affected by the decision is still dissatisfied, the person can apply to this Tribunal for review: section 212-1 of the Act. The decision under review, however, is the refusal to re-credit the person’s SLE, and not the decision to award a particular grade to the student.
11. I mention in passing that some of the confusion from which Mrs Kanesbi suffered as to the extent of the Tribunal’s review function was probably created by the terms of the letter sent to her by the University after reconsideration of the adverse decision. In that letter (T10, page 22) the University said:
Your appeal against the result of an application for W grades has now been considered and assessed according to information provided.
Your appeal has been dismissed …
…
E grades (Failed/Discontinued) will remain and you will not be eligible for a refund of any upfront payment.
Under the 2003 Higher Education Support Act (HESA) you have the right to appeal this decision with the Administrative Appeals Tribunal (AAT). …
12. Although the letter did not mention the re-crediting of Mrs Kanesbi’s SLE, it is clear from the University’s original decision letter (T7, page 19) and from Mrs Kanesbi’s letter requesting a review (T9, page 21) that at least one of the matters that Mrs Kanesbi wanted to put in issue was the refusal to re-credit her SLE. The Secretary did not contend otherwise, and the case proceeded on that issue alone.
The Student Learning Entitlement Guidelines and their status
13. By subsection 238-10(1) of the Act, the Minister may, by legislative instrument, make Guidelines of various kinds, including Student Learning Entitlement Guidelines as referred to in subsection 79-5(2) of the Act. The then Minister did in fact make such Guidelines on 21 July 2004.
14. Chapter 5 of the Student Learning Entitlement Guidelines deals with “special circumstances”. I set out paragraphs 5.1 to 5.10 in full:
5.1 PURPOSE
5.1.1The purpose of this chapter of the guidelines 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 79-5(1)(a) of the Act); 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 (paragraph 79-5(1)(b) of the Act).
5.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
5.5.1The 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.
5.5.5 This situation must be unusual, uncommon or abnormal.
5.10CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
5.10.1The 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.
15. As mentioned above, subsection 79-5(2) of the Act says that a decision of a higher education provider under section 79-5 “must be in accordance with” the Student Learning Education Guidelines. During the hearing I asked the Secretary’s representative whether the Tribunal’s decision must also “be in accordance with” those Guidelines. I quote from a submission filed on behalf of the Secretary after the hearing:
…
3.A Ministerial or departmental policy which is not a legislative instrument is not binding on decision-makers although it is a relevant factor to be taken into account: see e.g. Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645; Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208.
4.The Student Learning Entitlement Guidelines (the Guidelines) were made by the Minister under section 238-10 of the Act and were gazetted on 27 July 2004. They are a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 (Cth). As such, they:
4.1.have been scrutinised by both Houses of Parliament in a way similar to that of an enactment;
4.2.are a form of subordinate legislation; and
4.3.must be complied with by decision-makers.
5.As a legislative instrument, the status of the Guidelines can be contrasted with that of a Ministerial or departmental policy, which is not a form of subordinate legislation and which decision-makers are not bound to apply (though they should take it into account, as stated in paragraph 3).
6.The Tribunal, pursuant to s 79-1 of the Act, is determining whether or not to re-credit the applicant’s Student Learning Entitlement. The issue before the Tribunal is whether or not the Tribunal is satisfied that special circumstances exist pursuant to [s 79-1(1)(c)] and s 79-5 of the Act.
7.The respondent submits therefore that section 79-5(2) requires the Tribunal to make its decision in relation to the matters in [s] 79-5(1) in accordance with the Guidelines.
16. I agree with those submissions.
17. It follows that Mrs Kanesbi needs to establish, at least, that:
(a) a situation occurred which a reasonable person would consider was not due to Mrs Kanesbi’s action or inaction, either direct or indirect, and for which she was not responsible (paragraph 5.5.1 of the Guidelines); and
(b) this situation must be unusual, uncommon or abnormal (paragraph 5.5.5 of the Guidelines); and
(c) Mrs Kanesbi’s circumstances must occur on or after 31 March 2007, or must occur before 31 March 2007 but worsen after that day, or must occur before 31 March 2007 but the full effect or magnitude becomes apparent only on or after that day (paragraph 5.10.1 of the Guidelines).
The evidence
18. I took into evidence the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents). Mrs Kanesbi gave evidence orally, as did her husband, Aziz Cidan, and her doctor, Dr Hamid. Two of her friends, Gesuina Haaring and Ghada Khalili, made written statements and were cross-examined by telephone.
19. Mrs Kanesbi’s evidence was that in the early part of the first semester of 2007, she and her husband were trying to start a family. Some time towards the end of March 2007 – the document T3, at page 15, suggests that it was on 26 March – Mrs Kanesbi had some pathology tests carried out which showed that she did not have an immunity to rubella. She was given an inadequate explanation of this condition, or at least an explanation that she did not understand fully. She gained the impression that because of this diagnosis she was unable to have children. This caused her a great deal of stress. She became distracted and could concentrate on very little other than what she had been told about the pathology results and what she thought that meant for her capacity to have children.
20. She found it difficult to focus on her studies. She saw her doctor, Dr Hamid, on 29 March 2007, and he told her she should have a vaccination against rubella and then wait three months before trying to start a family.
21. She came to the view that she could not do the four units of study that she was enrolled in, and thought that she should drop back to three. On around 4 April 2007, Mrs Kanesbi had a conversation with her Head of Program at UWS. During this conversation the possibility was mentioned, apparently for the first time, that Mrs Kanesbi might be entitled to advanced standing for Australian Politics. Mrs Kanesbi seems to have understood that this conversation was enough to entitle her to discontinue Australian Politics, without penalty. However, in an email sent to Mrs Kanesbi on 3 July 2007, presumably in response to an approach around that time by Mrs Kanesbi, the Head of Program wrote:
In order to reprocess your advanced standing you have to have withdrawn from Australian Politics. I was sure I’d told you this but perhaps I was not clear enough. See if they will let you withdraw now before the results are finalised.
22. On 8 July 2007, Mrs Kanesbi wrote a statement “to whom it may concern” to the effect that she was
eligible for advance standing which The Head of Program [name deleted] has authorised after the census date (15th April). [She] herself was my lecturer for the Unit (Australian Politics) which she did not see any need for me to study this subject. I by this time did not have any knowledge that I have to withdraw from the Unit (Australian Politics). I will really appreciate your consideration.
23. In response, the University sent her a letter dated 11 July 2007 (T7, page 19) which indicated that a “W” grade would not be issued and that Mrs Kanesbi’s Student Learning Entitlement would also remain debited for the Australian Politics unit.
24. It is clear that there were two factors in play in relation to Mrs Kanesbi’s circumstances around the end of March 2007. One was the stress that she felt as a result of her pathology tests, and the other was the issue of her entitlement to withdraw without penalty from Australian Politics on the basis of advanced standing for that unit.
25. Mrs Kanesbi’s friend, Mrs Gesuina Haaring, made a written statement which I took into evidence and marked as exhibit A1. Mrs Haaring stated that she had known Mrs Kanesbi for the past two years. She stated that at the beginning of autumn semester 2007, Mrs Kanesbi seemed “stressed and disturbed". She described her as "preoccupied with family issues and health problems”. Eventually, she stated, Mrs Kanesbi had confided with her that she was “diagnosed with Rubella Serology and that would affect her (sic) from falling pregnant. She seemed very depressed and venerable (sic) at that time.”
26. She supplemented her written statement with oral evidence. In this, Mrs Haaring confirmed that Mrs Kanesbi was “really stressed out" in March 2007. She was apparently worried about falling pregnant. She said that Mrs Kanesbi settled down after she saw a doctor – in April, she thought. She was “stressed out and confused". She was not focused on her “university stuff”. She could not concentrate. She said that Mrs Kanesbi had been "stressed out for a couple of weeks".
27. Another friend, Ghada Khalili, also gave a written statement, exhibit A2. Ms Khalili described Mrs Kanesbi as “very stressed and disturbed” at the beginning of the semester. She said that Mrs Kanesbi had told her she had been diagnosed with rubella and "that would affect her (sic) from falling pregnant. She was very depressed and vunerable (sic) at that time." In her oral evidence she said several times that Mrs Kanesbi had been “distracted”.
28. Questioned by the Secretary's representative, Mrs Haaring and Ms Khalili both acknowledged that Mrs Kanesbi had not dropped out of University, but had satisfactorily completed her remaining three subjects in the relevant semester.
29. Mrs Kanesbi’s husband, Aziz Cidan, also gave evidence. He said that after his wife went to the medical centre for the pathology tests, she was crying. He recalled that she said, “We can’t have a family. I have rubella.”
30. Dr Hamid said that he had seen Mrs Kanesbi, albeit infrequently, since May 2003. He said that when she came to see him on 29 March 2007, she "needed counselling". She was worried because she had no antibody against rubella. He said that she had misunderstood what had been told to her when she was given the results of the pathology tests. Dr Hamid said that he explained the position to her. He said that he told her that she needed to be vaccinated. His impression was that she understood his explanation. When questioned about this last point, he said that he thought she "definitely" understood.
Findings of fact
31. I find that Mrs Kanesbi was significantly stressed when she received the results of her pathology tests on or around 26 March 2007.
32. I also find, on the basis of Dr Hamid's evidence, that on 29 March 2007, any misunderstanding that Mrs Kanesbi had in relation to the pathology results – and which was the cause of her stress – was corrected. I find, consistent with the statement of Mrs Haaring, that her emotional state started to improve virtually immediately upon hearing from Dr Hamid that all she had to do was have an injection against rubella and wait three months before trying to become pregnant. Although Mrs Haaring said that she thought that Mrs Kanesbi’s visit to the doctor had been in April, it is clear from Dr Hamid’s evidence that it took place on 29 March 2007.
33. In support of the finding as to the improvement in Mrs Kanesbi’s emotional state, I note that by 4 April 2007, Mrs Kanesbi was sufficiently composed to have a discussion with her Head of Program about the possibility of gaining advanced standing for Australian Politics. I also note that she continued with her three remaining units of study in the relevant semester, and obtained a “credit” grade in each of them – with marks of 66, 70 and 72.
34. In the light of these findings, there is no room for a finding that Mrs Kanesbi’s circumstances are sufficient to satisfy paragraph (c) of the minimum requirements detailed in paragraph 17 of these reasons. It is not the case that her circumstances worsened after 31 March 2007, nor that the full effect or magnitude became apparent only on or after that day. As a result she has not satisfied me that special circumstances, within the meaning of that expression in paragraph 79-1(1)(c) of the Act, apply to her.
Conclusion
35. The decision under review is therefore affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member
Signed: ......................[sgd]..........................................................
T Aviram, AssociateDate of Hearing 21 February 2008
Date of Decision 8 April 2008
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Ms B Anniwell, AGS
Counsel for the Respondent Ms K Morgan
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