Kara Palombo and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education
[2012] AATA 564
•28 August 2012
[2012] AATA 564
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/0030
Re
Kara Palombo
APPLICANT
And
Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 28 August 2012 Place Adelaide The decision under review is affirmed.
.......................[Sgd Senior Member K Bean]...........................
Senior Member K Bean
CATCHWORDS
HIGHER EDUCATION – Student assistance – Student Learning Entitlement – Whether “special circumstances” apply such that SLE should be re-credited – Relevant circumstances not beyond applicant’s control and therefore not “special” – Decision under review affirmed.
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 70-1, 79-1(c), 79-5(1) & (2)
Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (Cth)
Student Learning Entitlement Guidelines, Chapter 5
Student Learning Entitlement (Repeal) Instrument 2011Administration Guidelines 2012, Chapter 3
CASES
Sally Knee v Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 392
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634
Re Costello and Department of Transport (1979) 2 ALD 934REASONS FOR DECISION
Senior Member K Bean
28 August 2012
INTRODUCTION
The applicant, Ms Palombo, has recently successfully completed a law degree at the University of Adelaide (Adelaide). However, while she was still a student, she participated in an exchange program with the University of Oregon in the United States of America (Oregon) which enabled her to complete some of her studies there.
Ms Palombo commenced studies at Oregon in January 2010 and successfully completed her classes there for the first semester. However, although she attempted to enrol for the second semester, certain difficulties arose as a result of which she was found not to be complying with the requirements of the exchange program. This had the further consequence that her visa was cancelled and her enrolment at Oregon was terminated.
This chain of events also had a number of further consequences, including that Ms Palombo was required to leave the United States (although she later returned on a visitor’s visa). An additional consequence was that she forfeited her Commonwealth funded subsidy or “Student Learning Entitlement” (SLE) in respect of two second semester courses which she had been intending to undertake at Oregon.
Ms Palombo subsequently sought to have her SLE re‑credited. However a delegate decided on 15 November 2010 that Ms Palombo’s SLE should not be re‑credited and that decision was confirmed by the Acting Director, Student Administration Services at Adelaide on 21 December 2010.[1]
[1] T32.
On 6 January 2011, Ms Palombo sought review of the original decision (as confirmed on reconsideration) by this Tribunal, giving rise to these proceedings.
Before addressing the issues which arise in the application more directly, I will first outline the applicable statutory framework.
THE STATUTORY FRAMEWORK
The Higher Education Support Act 2003 (the Act) has recently been amended so that the provisions which apply to units of study completed after 1 January 2012 are different to those which applied to Ms Palombo’s units of study (see the Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (the Amending Act)). However the previous section 70-1 of the Act (which continues to apply to Ms Palombo) explained the SLE as follows:
“Student Learning Entitlement (or SLE) is needed for many 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 a person undertakes units of study as a Commonwealth supported student (but it can be re-credited in some circumstances).”
Division 76 of the Act (as it then was) also explained when a person’s SLE was reduced. In the normal case, a person’s SLE was reduced if, at the end of the census date for a unit of study, the person was enrolled in the unit. This reduction took effect immediately after the census date for the unit of study: s 76-1(3). The relevant census date in this case was 31 August 2010.
Under the applicable provisions, a person’s SLE could be re-credited under s 79 of the Act (as it then was). Section 79-1(1) of the Act set out the circumstances in which the higher education provider was required, on the respondent’s behalf, to re-credit a person’s SLE. There were a number of criteria set out in s 79-1(1). In this matter, the issue is whether the criterion in s 79-1(1)(c) of the Act is met, namely that:
“The provider is satisfied that special circumstances apply to the person (see s 79-5).”
Section 79-5 of the Act provided at the relevant time:
“79‑5 Special circumstances
(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.”
Section 238-10(1) of the Act also provided at the relevant time that the Minister may, by legislative instrument, make guidelines of various kinds, including Student Learning Entitlement Guidelines (SLE Guidelines) as referred to in s 79-5(2) of the Act. The then Minister made such Guidelines on 21 July 2004. These Guidelines were Gazetted on 27 July 2004 and were a legislative instrument within the meaning of s 5 of the Legislative Instruments Act 2003 (Cth) (LIA).
However, in association with amendments to the Act made by the Amending Act, a further instrument, the Student Learning Entitlement (Repeal) Instrument 2011 (Repeal Instrument) was made on 17 January 2012 and registered on the Federal Register of Legislative Instruments (FRLI) on 2 February 2012. This instrument provided (at paragraph (iv)):
“The Student Learning Entitlement Guidelines made on 21 July 2004 and registered on 24 October 2005 are repealed.”
Neither the Amending Act nor the Repeal Instrument expressly say anything in relation to the continued application of the SLE Guidelines to matters such as this one, to which the ‘old Act’ continues to apply. New guidelines, the Administration Guidelines, have been made, however those guidelines came into effect on 1 January 2012 and are expressed to apply only to matters to which the amended provisions of the Act apply.
Whilst they are in substantially similar terms, there are some significant differences between the two sets of guidelines. Therefore, as acknowledged by the parties in written submissions filed after the hearing, it follows that I must determine as a preliminary issue which set of guidelines I should apply in this matter, if either.
Which guidelines apply here?
This issue also required determination in the recently decided matter of Sally Knee v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 392 in which the Tribunal, constituted by Senior Member Walsh, canvassed the effect of the relevant authorities. The Tribunal also canvassed the possibility of the applicant in that matter having an “accrued right” to have her application dealt with under the SLE Guidelines, notwithstanding the repeal of those guidelines.
Whilst acknowledging that Ms Knee arguably had an “accrued right” to have her application determined in accordance with the SLE guidelines, the Tribunal ultimately concluded in that matter that it would be more favourable to her if the Tribunal were to apply the law in force as at the date of its decision, and further that it was permissible for it to do so. The Tribunal accordingly proceeded to determine that matter taking into account Chapter 3 of the Administration Guidelines in making its decision on the existence of “special circumstances” in that case. In doing so the Tribunal noted that:
“… Chapter 3 of the Administrative [sic] Guidelines reflects current government policy in deciding “special circumstances” matters and there is no cogent reason for the Tribunal not to take it into account in reaching its decision: Re Drake v Minister for Immigration and Ethnic Affairs No 2”.[2]
[2] At [79].
The parties’ contentions
In this matter, the respondent informed me that the situation which has developed, whereby a lacuna has resulted from the repeal of the SLE Guidelines, was in effect the result of an oversight. The respondent frankly acknowledged that it had not been anticipated that the making of the Repeal Instrument would have the effect that the SLE Guidelines might no longer be applicable to matters such as Ms Palombo’s.[3]
[3] Respondent’s written submissions dated 4 June 2012 at [8(c)].
The respondent also conceded that in the circumstances the Administration Guidelines did not have effect in this matter as a legislative instrument. However, the respondent contended that the Tribunal should nevertheless take the Administration Guidelines into account in making its decision “… as it reflects current government policy in deciding ‘special circumstances’ matters and applying the relevant criteria”.[4] The respondent relied on the decision in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634 in support of that contention. The respondent also submitted that:
“there are no cogent reasons why the Tribunal would not follow the Administration Guidelines in exercising its discretion in this matter and from an administrative consistency perspective, there are strong reasons for applying the Administration Guidelines”.[5]
[4] At [14(d)].
[5] At [14].
In light of the authorities canvassed in the decision of the Tribunal in Knee, including Re Costello and Department of Transport (1979) 2 ALD 934, the respondent further contended that it was permissible for the Tribunal to apply the law as in force as at the date of its decision rather than the law as in force as at the date of the original decision or the date of lodgement of Ms Palombo’s review application. Having regard to s 15 of the LIA, the respondent conceded that it was arguable that:
“… Ms Palombo has an “accrued right” to have her application for re-credit determined in accordance with the law as it existed at the time of the original decision or on lodgement of her review application …”[6]
However the respondent also contended that, in the event such an accrued right existed, that did not have the consequence that the Tribunal was limited to determining the application in accordance with that “accrued right”.
[6] At [20].
For her part, Ms Palombo agreed that the SLE Guidelines no longer applied to her matter and did not seek to have the Tribunal apply those Guidelines as a result of any “accrued right”. She further submitted that given that the Administration Guidelines only applied to units with a census date on or after 1 January 2012, they clearly did not apply to her matter and should not be applied. She submitted that the Tribunal “is not bound by them or required to take them into consideration at all.”[7] She further submitted that:
“… previously under the Guidelines this was a strict and often burdensome test. I say now that the Tribunal is allowed to adopt a broader interpretation of the meaning of special circumstances and that this is appropriate.”[8]
She submitted accordingly that the Tribunal now had discretion to “… apply a more liberal test”[9] and that “… the ordinary meaning of these words can now be adopted.”[10]
[7] Applicant’s submissions dated 11 June 2012, at [11].
[8] At [12].
[9] At [14].
[10] At [14].
She further submitted that:
“… this decision is one similar to that in Costello and that the Tribunal is not being asked to address an accrued right or liability but rather that the Tribunal is being asked to decide whether or not the circumstances in the present matter warrant the re-crediting of fees - this is an investigatory process… ”[11]
She therefore submitted that the law “… as it stands at the time of the decisions” should apply.
[11] At [17].
Consideration
Having carefully considered the decision of the Tribunal in Knee and the submissions made by both parties in this matter, I have ultimately concluded that I should adopt the approach urged on me by the respondent, which essentially coincides with that taken in the Knee decision.
I have concluded that in the somewhat unusual circumstances which have unfolded, neither set of guidelines applies to the decision I am required to make as a matter of law. That is because the SLE Guidelines have been repealed and have no continuing effect, and the Administration Guidelines only apply to units of study commenced after January 2012.
If the SLE Guidelines had not been repealed, I consider there would have been a good argument that they continued to apply to this matter. Having regard to the applicable authorities, I consider it would have been arguable in those circumstances that Ms Palombo was entitled to have her application for re-crediting of her SLE dealt with under the guidelines which applied at the time she undertook the study, when she made her application and when that application was originally dealt with. However in circumstances where the SLE Guidelines have been repealed, I am not satisfied that they continue to be applicable to this matter as a matter of law.
That conclusion would not preclude Ms Palombo having an “accrued right” to have her application dealt with under the SLE Guidelines and in my view it is arguable that, if the previous guidelines had been more favourable to her, Ms Palombo may have had an “accrued right” to have her application determined under those guidelines, if only in the alternative. However Ms Palombo has acknowledged that the SLE Guidelines were not more favourable to her, and has not sought to have them applied to her application.
In these circumstances, the remaining question is whether, although I am not obliged to do so by the legislation, I should have regard to either set of guidelines as reflecting government policy in accordance with the principles articulated in Drake.
In relation to that question, I have concluded, consistently with the submissions of the respondent, that I should have regard to the guidelines as a reflection of government policy and in the interests of consistency in administrative decision making. Clearly the guidelines reflect government policy as to how the relevant “special circumstances” discretion should be exercised and it would be inappropriate in my view for me to disregard that policy and apply a different test to Ms Palombo. This is particularly the case in circumstances where it appears the SLE Guidelines were entirely repealed due to an oversight and it was not in fact intended that they not continue to apply to old Act matters.
That leaves the question of which set of guidelines should be applied and I have considered whether, particularly in light of the history referred to immediately above, it is more appropriate for me to follow the SLE Guidelines. If there had been a significant change to the legislation, I would have been attracted to that course. However in circumstances where the new s 36.21 introduced by the Amending Act effectively replicates the old s 79-5, I have concluded that it is appropriate for me to apply the Administration Guidelines as the more recent expression of government policy as to how the relevant discretion should be exercised.
For all of these reasons, I propose to follow the Administration Guidelines although, against the possibility that my analysis as set out above is incorrect, I will also address the question of whether, if I had followed the SLE Guidelines, the ultimate outcome would have been any different. As I have alluded to above, in some respects the two sets of guidelines are identical, and for reasons which will become apparent, on my analysis ultimately nothing turns on the difference between the two sets of guidelines in this matter in any event.
The Administration Guidelines
Chapter 3 of the Administration Guidelines, titled “Special Circumstances”, relevantly provides:
“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 questions (paragraph 36-21(1)(b) of the Act; and
(c) make it impracticable for the person to complete the requirements of 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 3.5.1 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 unforseen 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 be either not being able to complete the unit, or not being given credit towards other units of the course.”
THE ISSUES
It follows that the issue for my determination is whether there were “special circumstances” within the meaning of s 79-5 of the Act that applied to Ms Palombo. Having regard to the terms of s 79-5 and my conclusions set out above, that issue involves consideration of the following in accordance with the Administration Guidelines:
(a)Whether the circumstances which applied to Ms Palombo were beyond her control;
(b)If so, whether those circumstances did not make their full impact upon Ms Palombo until on or after 31 August 2010; and
(c)If so, whether those circumstances made it impracticable for her to complete the requirements for the unit of study she was undertaking.
However before addressing these issues, I propose to set out some of the relevant factual background to this application and discuss some of the more salient aspects of the evidence before me.
BACKGROUND FACTS
As I have alluded to above, in 2009 Ms Palombo was enrolled in a law degree at Adelaide when she completed an application to study as an exchange student for the first semester of 2010 at Oregon.[12] She was subsequently accepted by Oregon as a law exchange student for the spring term with classes beginning on 19 January 2010.[13]
[12] T3/28-29.
[13] T5/31.
However Ms Palombo subsequently decided she would like to study at Oregon for a year, effectively undertaking study at Oregon which would be equivalent to a year’s study at Adelaide. Ms Palombo was advised that as she only had fifteen units of electives left to do for her law degree, she would only be approved to do that amount of study at Oregon by Adelaide.
On 27 January 2010, Ms Palombo enrolled in the subject “Exchange Studies for law students” at Adelaide for semester one (worth nine credits towards her law degree at Adelaide).[14] She subsequently completed the following subjects at Oregon during the Spring 2010 semester:
·LAW 607 Sem Mediation – 3 units;
·LAW 610 Negotiation – 3 units; and
·LAW 610 Human Rights Law – 3 units.[15]
[14] T36/116.
[15] T28/93.
After she had completed the spring semester, Ms Palombo went travelling, including to South America with her brother, planning to return to Oregon for the fall semester.
On 27 July 2010, whilst she was still travelling, Ms Palombo enrolled in “Exchange studies for law students” at Adelaide for semester 2 (worth six credits towards her law degree at Adelaide).[16]
[16] T36/116.
The fall term at Oregon commenced in late August 2010, at which time Ms Palombo was working in Chile and proposing to remain there for the first six weeks of the semester. At that point she was not yet enrolled in any subjects at Oregon for the fall semester, although she had had discussions with some teachers about undertaking some independent study, as well as undertaking an externship known as the “Portland Program” (the Portland externship).
However as at approximately 22 August 2010, neither of the relevant teachers, Professor Moffitt or Professor Gassama, had approved a topic for her to study by way of independent study. Ms Palombo was also advised on or around 27 August 2010 that there were difficulties from Oregon’s point of view with her participation in the Portland externship for the fall semester[17], although the contemporaneous material suggests these were resolved on or about 31 August 2010.[18]
[17] ST2/196
[18] ST2/194.
Oregon subsequently approved Ms Palombo’s enrolment in the two independent study programs she had proposed. However Oregon also became aware, in October 2010, that Adelaide had not approved the Portland externship as constituting credit towards Ms Palombo’s degree. This created the difficulty that under the terms of the Adelaide/Oregon agreement, she was supposed to be registered full-time (nine credits) at both universities in order to be eligible to participate in the exchange program. The agreement between Oregon and Adelaide also contemplated that Adelaide would accept credit for the courses that she completed whilst enrolled at Oregon. Ms Palombo was accordingly found ineligible to continue in the Adelaide/Oregon Exchange Program[19] and as a result, Ms Palombo’s registration at Oregon was terminated and she was not able to complete her studies there.[20]
THE EVIDENCE
[19] T24/83-84.
[20] ST2/157.
Ms Palombo’s evidence
In her oral evidence, Ms Palombo explained that she had not understood that the fact the Portland externship was not approved by Adelaide would affect her enrolment status at Oregon. She also stated that no-one at Oregon had led her to believe that she could not do subjects there which were not credited by Adelaide.
Ms Palombo also said that she believed she had specifically told people in the administration at Oregon, such as a person named Melissa Barker, that she would not be getting credit for the Portland externship through Adelaide. As to whether she had expressly asked what effect Adelaide not approving the Portland externship would have, she conceded that she had not expressly asked anyone at the Oregon administration that question, as she believed they, in particular Ms Barker, already knew that she would not be getting credit for the Portland externship from Adelaide. She also said she had asked Professor Bender (who was responsible for the Portland Program) whether she would be able to undertake the Portland externship even though it would not be credited by Adelaide, and he had indicated this was no problem as it was his decision whether she could undertake the course. She said that she was led to believe by Professor Bender and Ms Barker that there was no difficulty with her undertaking the Portland externship even though this was not credited by Adelaide.
Ms Palombo also said that from her perspective she was always intending to undertake nine units at Oregon in the second semester, since if the Portland externship was not approved by Oregon, she was intending to enrol in a psychology subject in addition to the two law subjects involving independent study. She said she believed that so long as she was full-time at Oregon this was sufficient to fulfil her visa requirements and the requirements of the exchange program.
Ms Palombo also pointed out that the process for her to enrol for semester two was different to semester one in that she was attempting to undertake two independent subjects as well as the Portland externship, and the independent subjects required the professors in question to create the relevant subjects before she could enrol in them. Further she had had extensive discussions with each of the relevant professors in relation to her independent studies during semester two.
Ms Palombo accordingly contended that she believed her discussions, follow up meetings and subsequent contact with the professors were enough to secure enrolment. Further she also believed she was enrolled in the Portland externship “due to her constant discussions with Professor Bender and the relevant institution at which she was to work”.[21]
[21] Applicant’s Outline of Argument, at [29].
Ms Palombo also referred to the fact that Oregon had allowed her to participate in a subject not credited by Adelaide (mediation) in semester one, although she acknowledged that this subject was retrospectively approved by Adelaide.
Documentary evidence
It is apparent from the documentary records that on 14 April 2010, Ms Palombo was advised by Adelaide that she would be granted status towards her law degree at Adelaide for the two independent study subjects “reading and conference (3 credits)” and “legal writing (3 credits)” to be undertaken at Oregon in the fall semester[22]. It was on this basis that Ms Palombo enrolled in “exchange studies for law students” at Adelaide for semester two (worth 6 credits towards her law degree at the University) on 27 July 2010.[23]
[22] T10/38.
[23] T36/116.
However Ms Palombo was told as early as 24 February 2010 that Adelaide was unlikely to approve the Portland externship,[24] and the records are consistent with her evidence that she was aware from February 2010 that Adelaide would not accept her participation in this program as constituting credit towards her degree.
[24] T8/36.
The confusion which led to this situation and the problems it created are detailed in some of the later email correspondence. For example on 11 October 2010, Ms Nicole Commissiong of Oregon sent an email to Ms Palombo which stated in part as follows:
“I still await written confirmation from Ms Chapman that the particular topics that you have selected for your Reading & Conference and Reading & Writing courses are acceptable to Adelaide. Assuming that the topics are acceptable, there remains a significant problem to your enrolment at the UO.
Today for the first time you told me that your home institution would not accept the externship credit towards our degree. Under the terms of the Adelaide/UO Agreement, you are supposed to be registered full-time (9credits) in order to be eligible to participate in the program, and the Agreement contemplates that your home institution will accept the credit for the courses that you complete while enrolled here. Your email below states clearly that Adelaide will not accept the credit for the externship, which makes you ineligible to continue in the Adelaide/Oregon program…”[25]
[25] T24/84.
Ms Palombo sent an email in response dated 12 October 2010 which stated in part:
“… I was never told that all my classes needed to be credited in Australia, in fact I was told quite the opposite: that I was allowed to take additional classes if I desired… I do not understand how this was not raised earlier especially since I provided all information promptly when it was requested…”.[26]
[26] T24/82-83.
Ms Commissiong replied as follows on 13 October 2010:
“…the confusion arises from the fact that you had not provided us with complete information until yesterday. Yesterday was the first time you disclosed that Adelaide would not accept the externship credit.
It is the responsibility of visiting students to be communicative with the Law School’s Administration about their plans and acceptance of their coursework by their home institutions. You didn’t provide us with copies of letters approving the Reading & Writing and Reading & Conference when you received them last spring. If you had, we would have been aware that there was no written approval for the externship, inquired into whether or not it had been approved, and alerted you to the consequences of it not being approved. We don’t admit visiting students unless their institutions agree to accept the credit they do here… Consistent with that policy, the negotiated Agreement between the UO and Adelaide requires that Adelaide accept course credit completed by Adelaide students while enrolled at UO.
... you cannot be full-time within the program unless Adelaide accepts at least 9 credits…
…Please also note that when you spoke to Professors Bender and Moffitt about the work you wanted to do with them this fall, they would have had no knowledge of whether you had been admitted for fall or of the terms of the Adelaide/Oregon Agreement, and no authority to extend your admission to the UO this semester. That authority lies with the UO’s Administration…”[27]
[27] T24/81-82.
Once it had become apparent that she would not be able to continue with her study at Oregon, Ms Palombo sent an email to Adelaide in relation to the possible refund of the fees she had paid, explaining her situation as follows:
“..I was meant to be completing a second semester here but due to a series of mis‑communication and confusion I have been forced to quit my subjects…
I have pleaded and presented a series of emails to the UO which demonstrates that I was not at fault, administration had told me they would enrol me but took months to do this – when they finally got around to it they realised the problem. That is, the university here did not realise that Adelaide was not crediting one of my subjects. This resulted in me only being allowed to partake in 6 units. For immigration purposes I needed to take at least 9…”[28]
[28] T16/54.
Also before me is a copy of the exchange agreement between Oregon and Adelaide,[29] which bears out what Ms Commissiong said to Ms Palombo about its effect. The Agreement relevantly states as follows:
“Each institution will provide orientation and academic advice to assist the incoming STUDENTS in the selection of appropriate courses. It is the intent of the institutions that course work completed by STUDENTS at a HOST institution will be accepted for academic credit at the HOME institution. …”[30]
[29] T38/125-132.
[30] T36/127.
Nevertheless, it is clear from some of the email correspondence that Ms Palombo was led to believe that she could potentially do more subjects at Oregon, even if these would not count toward her degree through Adelaide. For example, in November 2009 Ms Palombo asked Ms Corrine Walding of Adelaide whether she could do 18 units through Oregon even though she only needed 15 units to complete her law studies at Adelaide. Ms Walding responded as follows:
“If you have only 15 units of electives left then you would only be approved to do up to that on exchange. If you enrolled in more courses over in Oregon however presumably this is something that they would need to approve and perhaps it might be worth checking with Adelaide Abroad. We would only allow you to count up to a maximum of 15 units of electives as this is all that you have left for your Law studies”.[31]
[31] ST1/153A.
As to the circumstances surrounding the Portland externship, the material before me also includes an email from Professor Bender to Ms Palombo dated 5 December 2011.[32] In this email Professor Bender confirms that Ms Palombo successfully completed the Portland externship in fall 2010, although she did not receive academic credit for this (as this was after her enrolment at Oregon had been terminated). He also confirms in the email that he was aware before she commenced the externship that she would not be receiving academic credit for the externship from Oregon (by that time she was no longer enrolled at Oregon) and that he approved her participation in it nevertheless.
[32] Exhibit 3.
Following the initial hearing in this matter on 8 December 2011, each of the parties also made contact with a number of the persons with whom Ms Palombo had had contact at Oregon, with a view to clarifying certain matters with them. The resulting email exchanges were tendered into evidence at the final hearing on 23 February 2012.[33]
[33] Exhibit 4.
These include an email exchange between Mr Maundrell, who appeared as counsel for the respondent, and Professor Bender. In this email exchange Professor Bender clarified that he was aware that Ms Palombo would not receive academic credit for the externship from either Oregon or Adelaide. He also confirmed that Ms Palombo told him that she would not be able to receive academic credit for the externship from Oregon on or about 20 October 2010. He said that “I informed her that I would be willing to supervise her in my externship program regardless of whether she would be receiving academic credit.” Professor Bender also supplied the content of Ms Palombo’s email to him in which Ms Palombo told him about the difficulties she was having with obtaining credit for the externship:
“I am going through hell with the administration who only really recently realised that I was not getting credit in Australia for the internship. This had resulted in me only being enrolled in 6 units and I need 9 for visa purposes. Yesterday, Nicole pretty much told me that nothing could be done, that I would be withdrawn from both your project and professor Moffats and have 15 days to leave the country.”[34]
[34] Exhibit 4, p.14.
Professor Bender also made clear that he had no idea what the terms of the exchange agreement were, and that the only representation he made to Ms Palombo was that he would be willing to allow her to participate in his program on a volunteer basis without academic credit. He also stated:
“As the director of a program without defined contractual responsibilities, I felt it was within my authority to agree to supervise a student acting on a volunteer basis. Towards this end, I informed our assistant dean of studies (Nicole in the above excepted email) of my willingness and although she attempted to discourage me to not help Ms Palombo in any way, she did acknowledge the decision was ultimately up to me. I felt there was animosity that I didn’t understand the reasons for, and that Ms Palombo was being treated unfairly, so I decided to help her.”
In response to this further information from Professor Bender, Ms Palombo also wrote to Mr Maundrell in an email dated 13 December 2011 as follows:
“I have read the email below and I agree with Professor Bender in that ultimately my participation in the program was entirely on a vulenteer[sic] basis. I have informed yourself and the tribunal of this several times including in my evidence at the hearing. However, up until or around the 20 October both Professor and I were under the impression that I was to receive credit from university of Oregon for the program. After this date, being on or about the 20 October, my involvement was entirely volunteer.”
She also stated in a further email dated 13 December 2011:
“On or around the 20th is when we both became aware that I was not receiving any credit from either Adelaide or UO. Prior to this as you know I was aware that I would not receive credit from Adelaide and I believe Professor Bender was also aware…”
Professor Bender also advised in a further email dated 13 December 2011 that Ms Palombo was correct that he knew by 20 October that she would not be receiving credit from Oregon, but he recalled her telling him prior to then that she would not be receiving credit from Adelaide. He stated “My email records show that as early as April 7 2010 she told me there could be a problem with her obtaining credit from Adelaide.”
Professor Bender added in an email dated 13 December 2011:
“As to credit from Adelaide that simply would not have concerned me, and while I recall her telling me this I do not know the specific date. I was, however, concerned about whether she would get academic credit from Oregon, as she was the first person I allowed to participate without getting credit from the Oregon law school. I thought it would help her career goals and was willing to help and had some autonomy in my program to allow this. My reference to her taking the externship on a volunteer basis meant that she wouldn’t get credit from the University of Oregon, but I had absolutely no role in that Oregon law administration decision of whether she received credit or not. I continue to maintain that I made no representations other than saying I would allow her to participate in the program despite her telling me the Oregon law school was not willing to give her credit (and also, I recall, that not important to me, that the Adelaide school was unwilling to give credit.)”
Ms Palombo also stated in an email to Mr Maundrell dated 11 January 2012:
“I maintain that Ms Barker knew I was not going to receive credit for the Portland Program. I believe she knew this from very early on. She did not expressly, as far as I can remember, ‘you can take any subject at the UO that you are not receiving credit for in Australia’. However she also never told me I could not and given her knowledge (that I wanted to partake in the program, that I would not receive credit for it, her assistance in planning my year etc) and the fact that I had been told that I was allowed to do the subject over summer (although I would then have to pay for it) lead me to believe I was.”
Against the background of the above evidence, I will now address the issues identified above, having regard to the contentions of the parties.
WERE THERE “SPECIAL CIRCUMSTANCES” WITHIN THE MEANING OF S 79-5 OF THE ACT THAT APPLIED TO MS PALOMBO?
The Parties’ Contentions
Mr Maundrell contended for the respondent that Ms Palombo’s failure to withdraw from her course prior to the census date was not “beyond her control” so as to constitute “special circumstances” within the meaning of the Act and having regard to either the Administration or SLE Guidelines. Similarly, he submitted that her failure to fulfil the relevant requirements which lead to her enrolment being terminated was not beyond her control. He contended that the central fact in the matter was that Ms Palombo’s enrolment was terminated by Oregon when Oregon realised that Ms Palombo was not meeting the requirements for the law exchange program, namely that she undertake nine units, accepted by both Universities.
Mr Maundrell submitted that the core essential fact was that Ms Palombo’s enrolment was terminated because she did not have nine units approved by her home university. Mr Maundrell further submitted that in order to show that this circumstance was beyond her control, Ms Palombo needed to establish that the requirements of Oregon had been misrepresented to her either by Adelaide or Oregon. Otherwise, he submitted that she had been under an obligation to clarify the situation and did not do so.
Mr Maundrell drew attention to Ms Palombo’s allegations that she had been misled by misinformation and misrepresentations by others. However he contended there was no evidence of any misrepresentations. Mr Maundrell acknowledged that Ms Palombo had undertaken a subject in the first semester, mediation, which had not been credited at the time by Adelaide. However he contended that it appeared no-one at Oregon knew of this. He also pointed out that the mediation subject was later approved by Adelaide. He submitted that the relevant fact was that Oregon did not know that this course had not been approved by Adelaide whilst Ms Palombo was undertaking it.
In relation to Ms Palombo’s evidence that Ms Melissa Barker and/or Professor Bender had represented to her that she did not need credit from her home university to undertake subjects at Oregon, Mr Maundrell submitted that the evidence did not support the existence of any misrepresentation. He also contended that there was no evidence that Ms Barker knew Adelaide would not give credit for the externship, prior to the census date.
Mr Maundrell contended that, in all the circumstances, there was an onus on Ms Palombo to clarify what the impact would be on her Oregon enrolment of the fact that Adelaide were not crediting the Portland externship. Mr Maundrell contended that if the Oregon administration only became aware in October 2010 that she was not receiving credit from Adelaide for the externship, that was because she had not told them prior to this. He said she should have expressly explored with Oregon the fact that she was not receiving approval from Adelaide to do the externship, and what the implications of this would be, prior to the census date. He said that once Ms Palombo had been told by Adelaide that she would not get credit for the externship, she could have easily taken some action to clarify what precisely the implications of this would be. He pointed out that she had been told in February 2010 that she would not get credit for the externship through Adelaide.
In response to these submissions, Ms Palombo contended that she did make adequate enquiries. She submitted that she did not ask some of the questions Mr Maundrell said she should have asked, as from her point of view those questions had already been answered. She said she had constant conversations with the Oregon administration and believed they were aware of her situation. As she believed that Oregon were aware of what she was proposing to do, she said she assumed somebody would have told her if this would create a problem with her enrolment. She also pointed to the fact that she had undertaken a mediation subject in the first semester which had not been credited by Adelaide at the time she did it. She further contended that she believed Ms Barker knew she was not getting credit through Adelaide for the Portland externship, although she could not pinpoint exactly when Ms Barker knew this. She said that she believed she would have told Ms Barker this at around the time she herself became aware of it, in February 2010. She also said she believed Ms Barker would have told her if the fact Adelaide was not crediting the externship would affect her enrolment at Oregon. She said she also assumed there would have been correspondence between Adelaide and Oregon as to what subjects she was undertaking and her enrolment status.
In her “outline of argument”, Ms Palombo also stated that she believed she had secured enrolment for the Fall semester at Oregon for the following reasons:
(a)she had several discussions both during class and in casual meetings with teachers and Administrative staff regarding her plans for second semester;
(b)the environment at the UO Law School was very relaxed and she did not believe that it was necessary to secure everything in writing;
(c)given the way the UO Law School operated, any reasonable person in the applicant’s position would have relied upon the information provided;
(d)the applicant was a young student in a foreign country, it is not unreasonable for her to believe and trust the aforementioned people. They were in a position of authority and thus it seemed that their word and reassurance was adequate.[35]
[35] Applicant’s Outline of Argument, at [26].
Consideration
The first issue I must consider is whether the circumstances in which Ms Palombo found herself were “beyond her control” so as to potentially constitute “special circumstances” within the meaning of the Act and in accordance with the Administration Guidelines. This must be assessed having regard to the information available to Ms Palombo and the actions which were open to her at the relevant time.
As Mr Maundrell has pointed out, the critical circumstance which proved fatal to Ms Palombo’s enrolment at Oregon was that Adelaide had not approved the externship and she was required to be enrolled full-time in subjects approved by both universities. In considering whether this circumstance was beyond Ms Palombo’s control, I must accordingly have regard to what her understanding was at that time, whether that understanding was reasonable and whether there were actions open to her which may have avoided the scenario which eventuated, culminating in termination of her enrolment at Oregon.
As to Ms Palombo’s understanding of her situation, I accept that the evidence given by Ms Palombo was honestly given and it follows that I also accept that, as at the census date, she did not appreciate that the fact Adelaide would not approve the externship potentially imperilled her enrolment at Oregon. I also accept that she assumed, based on conversations she had had with the administration at Oregon, in particular Ms Barker, that Ms Barker was aware that she would not be getting credit for the Portland externship and I also accept that Ms Palombo assumed that Ms Barker or somebody else would have alerted her if this was likely to cause any difficulty with her enrolment.
I also accept that at all relevant times Ms Palombo believed it was permissible for her to do extra courses at Oregon even if these were not approved by Adelaide, and that, in the event the externship was not credited by Oregon, Ms Palombo had plans to undertake a psychology subject in order to maintain her full-time status at Oregon. Whether that would have been effective to maintain her full-time status and regularise her enrolment under the exchange program is not something which I need to explore further for the purposes of this matter.
I should add that it appears to me that one of the reasons the situation unfolded as it did was that Ms Palombo only needed 15 units of law to complete her law degree in any event, so that the fact Adelaide did not approve the Portland externship created no difficulties from her point of view with her fulfilling the requirements of her law degree. In these circumstances, the difficulty which was created was a somewhat artificial one in that it was a failure to adhere to the terms of the Adelaide/Oregon agreement, rather than any failure to meet the requirements of her degree. As Ms Palombo pointed out in her submissions, it was clear from the very beginning of her year at Oregon that she did not have enough credits remaining in her law degree for her to be a full-time law student with both universities for the whole year.
The critical question however is whether in these circumstances, the situation Ms Palombo found herself in was “beyond her control” in the relevant sense.
As Mr Maundrell effectively conceded in his submissions, the situation would have been beyond Ms Palombo’s control if she had been misled by staff at Oregon to believe that the fact the externship was not approved by Adelaide would not create problems for her Oregon enrolment. However on the basis of the evidence before me, I am not satisfied that misrepresentations were made to Ms Palombo to that effect. In particular, it is clear that Professor Bender did not represent to her that the fact Adelaide was not crediting the externship would not create problems with her enrolment. Further whilst Ms Palombo may have mentioned to Ms Barker that Adelaide were unlikely to approve or did not approve the externship, I am not satisfied that Ms Barker made any representation to Ms Palombo, either overt or implicit, that this would not create problems with her Oregon enrolment.
In the absence of any such misrepresentation, I find that Ms Palombo nevertheless assumed in all the circumstances, including the fact that she had undertaken a subject in the first semester which had only been approved by Adelaide later, that it was permissible for her to undertake the Portland externship even though this had not been approved by Adelaide. She further assumed that this would maintain her full-time status at Oregon and that this would be sufficient to secure her enrolment and allow her to comply with the requirements of the exchange program and her visa. In other words, one of her assumptions was that even though she was not enrolled as a full-time student at Adelaide for the second semester (because she was only enrolled in 6 units), this would not create any problems for her participation in the exchange program or enrolment at Oregon.
Ms Palombo contends that her assumptions were reasonable in the circumstances and she could not have been expected to make any further inquiries as to whether her enrolment, and participation in the exchange programme, were on a firm footing. However Mr Maundrell contends that there was an onus on Ms Palombo in all the circumstances to clarify the situation by making further inquiries prior to the census date. Specifically, he contends that she should have tested her assumptions that:
(a)she could undertake study at Oregon under the exchange program which was not approved by Adelaide; and
(b)she could drop below a full-time study load at Adelaide with no consequences for her participation in the program or her enrolment at Oregon.
Whilst this is a relatively finely balanced question, I have ultimately concluded that I should accept Mr Maundrell’s submissions on this point. I have reached that conclusion largely because I accept Mr Maundrell’s contention that it was open to Ms Palombo to seek to test the assumptions she made, as outlined above. I also accept his contention that if she had sought to clarify her situation by testing her assumptions prior to the census date, it is likely that the events which subsequently transpired would not have unfolded as they did. In particular, if Ms Palombo had sought to clarify the implications of the fact that Adelaide did not approve the externship, she could have taken steps to ensure that she maintained a full-time study load approved by both universities. Similarly, if, prior to the census date, she had sought to test her assumption that she was not required to remain a full-time student with Adelaide, this was also likely to have resulted in her taking the necessary steps, either to ensure she was full-time with both Adelaide and Oregon, or withdraw from her courses prior to the census date.
In reaching these conclusions, I should acknowledge that in my view Ms Palombo’s confusion as to the requirements she had to meet was understandable to some extent, particularly as she was on a law exchange program, and as at the beginning of the second semester she only had 6 units of law remaining. As I have noted above, given Adelaide had already indicated that she would only be approved to do up to 15 units of law at Oregon, and at the beginning of the second semester she only had 6 units of law remaining, it does not appear that it would have been possible in any event for her to be approved through Adelaide to undertake 9 units of law in the second semester at Oregon. It is also not clear from the material that Ms Palombo was expressly told that she needed to be enrolled in 9 units with Adelaide, or in other words that she was required to be enrolled with Adelaide in more units in the second semester than were required to complete her law degree.
It is also not difficult to understand why Ms Palombo did not appreciate that any units she undertook at Oregon needed to be approved by Adelaide. In her email to Ms Commissioning, of 12 October 2010, Ms Palombo said:
“I was never told that all my classes needed to be credited in Australia, in fact I was told quite the opposite: that I was allowed to take additional classed if I desired … I do not understand how this was not raised earlier especially since I provided all information promptly when it was requested …”.[36]
[36] T1/20.
This statement is largely consistent with the contemporaneous evidence. Perhaps most relevantly, when she enquired on 22 November 2009 whether she could do 18 units at Oregon although she only needed 15 credits to complete her law degree at Adelaide, Ms Walding advised her that if she enrolled in more courses over in Oregon “presumably this is something that they would need to approve” and it “might be worth checking” with Adelaide Abroad.[37] This response did not suggest that Ms Palombo would not be allowed to do extra units at Oregon that were not approved by Adelaide.
[37] ST1/153A.
In these circumstances, as I have acknowledged above, a degree of confusion on Ms Palombo’s part was understandable. On balance however, I have concluded that it cannot fairly be said that Ms Palombo’s situation was beyond her control in the relevant sense. As I have indicated above, Ms Palombo could have acted to clarify her situation at a point in time which would have allowed her to avoid the scenario which eventuated. She was aware from February 2010 that Adelaide would not approve the Portland externship. However, although I have found the implications of that were not misrepresented to her, she took no action to confirm that it would not create problems for her participation in the exchange program.
Perhaps even more significantly, Ms Palombo also assumed that she could drop below a full-time load with Adelaide without threatening her participation in the exchange program, and failed to take steps to confirm that her understanding in this respect was correct. She did this in circumstances where I consider she should have been aware that the fact she was only enrolled in 6 units with Adelaide and this was less than a full-time load potentially raised a question as to whether she would be in compliance with the exchange program. In my view there was accordingly some onus on her to clarify the situation, by testing her understanding that the fact she was no longer full-time with Adelaide raised no issues with her participation in the exchange program.
If Ms Palombo had more actively pursued that question and attempted to ensure at an earlier point in time that she was or would be in compliance with the exchange program, the events which unfolded could potentially have been avoided and she is likely to have had an opportunity either to ensure she was undertaking 9 units with both universities (presumably involving one psychology subject), or to withdraw from the relevant subjects before the census date. That being the case, I do not consider the circumstances in which she found herself to have been “beyond her control” in the sense of constituting a situation which was not due to her “action or inaction, either direct or indirect”, and for which she was not responsible.[38] Rather her circumstances were largely due to her inaction in not clarifying her situation in the ways canvassed above.
[38] Administration Guidelines, 3.5.1.
It follows that whilst a degree of confusion on Ms Palombo’s part was understandable for the reasons discussed above, in my view it cannot be said that the circumstances leading to termination of her enrolment were beyond her control in the relevant sense.
As Ms Palombo does not satisfy s79-5(1)(a) of the Act, it follows that she has not established the existence of “special circumstances” and her SLE cannot be re-credited. It is therefore not necessary for me to proceed to consider the remaining issues identified above.
For completeness, I should add that my conclusion would have been the same if I had found the SLE Guidelines to be applicable, since insofar as they elaborate on “Circumstances Beyond a Person’s Control”, the two sets of guidelines are identical.[39]
[39] See SLE Guidelines, [5.5].
For these reasons, I have decided to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 91 (ninety -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean. .....................[Sgd]...................................................
Administrative Assistant
Dated 28 August 2012
Date(s) of hearing 8 December 2011 and 23 February 2012 Date final submissions received 2 July 2012 Applicant In person Advocate for the Respondent Mr Shane Maundrell Solicitors for the Respondent Dispute Resolution, Legal Branch
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