KASEM AL-HIR and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 595
•13 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 595
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1398;
GENERAL ADMINISTRATIVE DIVISION ) 2009/2069 Re KASEM AL-HIR Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr S Karas, AO, Senior Member Date13 August 2009
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
...................[Sgd]...............
Senior Member
CATCHWORDS
SOCIAL SECURITY – Higher education – Student Learning Entitlement – Fail grade for unit of study means person has not “completed the requirements” – Special circumstances considered – Ill-health – Assertions of misleading advice – Special circumstances not established – No jurisdiction to consider future units of study – Decisions affirmed.
Higher Education Support Act 2003 (Cth), ss 76-1(1), 79-1, 79-5, 79-10(2), 206-1, 212-1
FSMN and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1051
Kyriakopoulos and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 169
REASONS FOR DECISION
13 August 2009 Mr S Karas, AO, Senior Member BACKGROUND
1. Mr Kasem Al-Hir, the applicant, was a student of the University of Queensland (“the University”) and completed a Graduate Certificate in Plant Protection that was conferred on him on 12 March 2007. He then enrolled in a Bachelor of Applied Science (Honours) (Horticulture), at the same university.
2. In an application dated 11 December 2008, the applicant requested the removal of financial liability for three units of study, all related to the Bachelor of Applied Science: AGRC6640, AGRC6614 and MICR3003. The reviewable decision refusing that application is the subject of appeal No 2009/1398 before the Tribunal.
3. In a memorandum dated 24 October 2008, the applicant requested: “I would please if Senate Student Appeals Committee wave [sic] fees two courses undergraduate to bring my post-graduate certificate according to information program 2006 UQ [sic]”[1]. The University treated this as an application for removal of financial liability for three further units of study, all relating to the Graduate Certificate in Plant Protection: BOTN6017, ENTM6003 and PLNT7014. The reviewable decision refusing that supposed application forms the subject of appeal No 2009/2069 before the Tribunal.
[1] Appeal No 2009/2069, T3, folio 7.
4. The applicant did not withdraw his enrolment in the above units of study, either before or after their respective census dates.
ISSUES
5. The issue before the Tribunal is whether the applicant’s Student Learning Entitlement (“SLE”) for the following units of study can be re-credited: AGRC6640; AGRC6614; MICR3003; BOTN6017; ENTM6003; and PLNT7014.
6. This matter is governed by s 79-1 of the Higher Education Support Act 2003 (“the Act”), which sets out the requirements for re-crediting a person’s SLE. Each requirement must be met in relation to a unit of study. Most relevantly in this matter, for the applicant’s application to succeed the Tribunal has to answer “yes” to the following questions:
·Did the applicant fail to “complete the requirements” of the unit in question, as required by s 79-1(1)(b) of the Act?
·Do “special circumstances” apply to the applicant, as required by s 79-1(1)(c) of the Act?
7. The applicant’s oral evidence at the hearing revealed that he harbours considerable anger towards the University. He used the Tribunal as a forum to air discontents unrelated to the current matter, despite being reminded that the Tribunal’s jurisdiction was limited to reviewing the reviewable decisions. Reviewable decisions are relevantly defined at Item 1 of s 206-1 of the Act: “Refusal to re-credit some or all of a person’s student learning entitlement for a unit of study”.
HAS THE APPLICANT “COMPLETED THE REQUIREMENTS” OF THE UNITS OF STUDY?
Units of study AGRC6640, AGRC6614, BOTN6017, ENTM6003 and PLNT7014
8. For SLE to be re-credited, the Act requires that the applicant not have “completed the requirements” of the units of study in question: s 79-1(1)(b) of the Act. In this case, it is easily ascertained from the applicant’s official academic transcript that he achieved a “Pass” grade or higher for the units AGRC6640, AGRC6614, BOTN6017, ENTM6003 and PLNT7014[2]. I am satisfied that, by achieving such grades, he did “complete the requirements” in relation to those units of study.
[2] See Appeal No 2009/2069, T10.
9. The applicant’s SLE for the units AGRC6640, AGRC6614, BOTN6017, ENTM6003 and PLNT7014 cannot be re-credited, because he has “completed the requirements” of those units. That being so, it is unnecessary to consider the other requirements of s 79-1 of the Act.
Unit of study MICR3003
10. The census date for MICR3003 was 31 March 2008. The applicant did not withdraw from that unit of study. The applicant’s official academic transcript reveals that he attained a “Fail” grade for this unit[3]. At the hearing, Ms Victoria Donaghy, who represented the respondent, submitted that the applicant had nevertheless “completed the requirements” of that unit. Her submission was based on the fact that the applicant had attempted all three assessment items. In particular, despite leaving early from the mid-semester examination for this unit[4], the applicant attempted every question[5].
[3] See Appeal No 2009/2069, T10.
[4] See Appeal No 2009/1398, T5, folio 19.
[5] See Appeal No 2009/1398, T17, folio 67.
11. I do not find the respondent’s submissions persuasive in this regard. University materials are equivocal on the point. The decision of 11 March 2009 states that: “With regard to MICR3003, you completed the requirements of the courses [sic] but were awarded a failing grade” (emphasis added)[6]. However, the course outline for MICR3003 states that: “Successfully completing this course will contribute to the recognition of your attainment of the following UQ (Undergrad Pass) graduate attributes” (emphasis added)[7]. The Tribunal notes this course outline would have been provided to the applicant at the time he undertook the unit, as it is entitled “MICR3003 – Sem 1 2008”.
[6] Appeal No 2009/1398, T15, folio 64.
[7] Appeal No 2009/1398, T17, folio 69.
12. Regard must also be had to s 79-10(2) of the Act, which discusses a person applying for the re-crediting of their SLE without having withdrawn their enrolment in the unit of study. In such a scenario, the provision allows an application to be made “12 months after the end of the period during which the person undertook, or was to undertake, the unit”. Use of the phrase “undertook, or was to undertake” shows that the Act contemplates that a person can successfully apply for re-crediting of their SLE for a unit of study whether or not they attempted all assessment items. The language of s 79-1(1)(b) and s 79-5(1)(c) of the Act, which defines “special circumstances”, also supports that conclusion; so do previously decided cases dealing with similar factual circumstances[8].
[8] See FSMN and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1051; Kyriakopoulos and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 169.
13. I am satisfied that by being awarded a “Fail” grade for MICR3003, the applicant has not “completed the requirements” for that unit of study. A contrary conclusion would run counter to the intent of the legislation, specifically Division 79 of the Act.
14. The Tribunal must now consider whether “special circumstances” apply to the applicant.
DO “SPECIAL CIRCUMSTANCES” APPLY TO THE APPLICANT IN RELATION TO MICR3003?
15. The applicant must show that “special circumstances” apply in order for his SLE to be re-credited: s 79-1(1)(c) of the Act. “Special circumstances” are defined by s 79-5 of the Act as follows:
“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.”
16. The applicant maintains that his circumstances are special within the meaning of s 79-5 of the Act. From the material and the applicant’s oral evidence, his case is that his SLE should be re-credited because he suffered from a number of medical complaints. Also, he was dissatisfied with the nature of the advice he received from the University over a period of time, both from the University internet site and from a number of University staff.
17. The respondent’s advocate submitted that the applicant had passed some assessment items at the time he was enrolled in MICR3003. Also, in the mid-semester examination for that unit, he had attempted to answer all questions. Consequently, the respondent submitted, the applicant’s situation did not constitute “special circumstances” as required by the Act. He had been ill for some time and was aware of his condition. Therefore, his medical condition was within his control and did not satisfy s 79-5(1)(a) of the Act.
Medical complaints
18. The applicant sat the mid-semester examination for MICR3003 on 26 April 2008. He stated that he became unwell during that examination and left early — although he attempted every question on the exam, receiving 11.9 out of 45. He suffered, he says, from some medical ailments, including psychological problems from when he was living in his homeland, Iraq. The applicant did not consult a medical practitioner at the time of the mid-semester examination or obtain a medical certificate as evidence of his illness. He only sought medical treatment and obtained a medical certificate some months later, in August 2008.
19. In August 2008, the applicant formally applied for a special examination for the MICR3003 mid-semester examination. The application was supported by a medical certificate indicating that a doctor had seen the applicant on 12 August 2008 and considered that he had been incapacitated during the original mid-semester examination. The medical certificate was based on “the patient’s own words”[9] and not on any contemporaneous diagnosis or examination. It was due to this lack of contemporaneous medical evidence that the University decided he was not eligible to sit a special mid-semester examination.
[9] Appeal No 2009/1398, T7, folio 38.
20. The applicant also submitted an application for a special examination for the final examination. That application, however, was supported by a contemporaneous medical certificate. It indicated that the applicant was suffering a medical condition and was unable to attend the University from 16 to 18 June 2008, inclusive. The University, on 18 June 2008, approved the applicant’s request for a special final examination for MICR3003.
21. The Tribunal notes that the applicant only produced a medical certificate for the mid-semester examination in August 2008, some months after the day of the examination. Given the delay in this regard and the wording and contents of the August 2008 medical certificate, the Tribunal finds that the certificate is not helpful in determining the extent and nature of the applicant’s illness at the time of the mid-semester examination in April 2008. Further, the Tribunal notes the applicant was able to pass other units of study in which he was enrolled at the same time. Therefore, the Tribunal finds that the applicant is unable to satisfy the requirements of “special circumstances” due to reasons of ill-health.
Incorrect advice
22. The applicant stated that he was misled by the University in relation to the procedure for applying for a special mid-semester examination. The applicant was unhappy with the University’s procedures and referred to complaints he made to various persons there. He stated that he experienced aggressive and unhelpful behaviour from University personnel.
23. The applicant states he was not provided with sufficient guidance in relation to MICR3003. He stated that the teaching of that unit was not only inadequate but also misleading. He also asserted that the University internet site misled him in relation to the nature of that unit of study.
24. The applicant referred to his employment. He feels that, because he was given incorrect advice by University personnel, he has not been able to get a job in his area of knowledge although he has applied for a large number of jobs. He presently drives a taxi.
25. The above assertions of the Applicant were not proved to my satisfaction. Although the Tribunal has some sympathy for the applicant in his endeavours to gain further educational qualifications so that he might be more appropriately employed, his circumstances do not meet the legislative requirements for “special circumstances” as set out in s 79-5 of the Act.
WAIVER OF FEES FOR TWO FUTURE UNITS OF STUDY
26. As shown above, the applicant fails to satisfy the requirements of s 79-1 of the Act and therefore his claim to have his SLE re-credited must fail. Ordinarily, that would end the matter. However, for completeness, I should deal with the applicant’s further claim for SLE “waiver” for two units of study in which he is yet to enrol. The applicant has stated throughout the review process for appeal No 2009/2069 that he requests the waiver of fees for two future (unspecified) undergraduate units.
27. Section 212-1 of the Act only allows application to be made to the Tribunal for the review of a reviewable decision. “Reviewable decision” is relevantly defined in s 206-1 of the Act as a refusal to re-credit some or all of a person’s SLE. Under s 76-1(1) of the Act, SLE is only reduced after the census date for a unit of study in which a person is enrolled. Thus, the Tribunal has no jurisdiction to grant a fee “waiver” for units of study in which the applicant has yet to enrol and in relation to which there is no “reviewable decision”.
DECISION
28. The Tribunal affirms the decisions under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member.
Signed:..............................[Sgd]...................................
Mátyás Kochárdy, Research AssociateDate of Hearing 6 August 2009
Date of Decision 13 August 2009
Applicant was self-represented
Solicitor for the Respondent Minter Ellison Lawyers
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