Khan and Secretary, Department of Education
[2019] AATA 3609
•18 September 2019
Khan and Secretary, Department of Education [2019] AATA 3609 (18 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7098
Re:Tanveer Khan
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:18 September 2019
Place:Canberra
The decision under review is affirmed pursuant to section 43(1)(a) of the AdministrativeAppeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-crediting – whether special circumstances apply – whether applicant’s circumstances made their full impact on or after the census date – whether circumstances are beyond the applicant’s control – whether circumstances make it impracticable to complete units of study – no special circumstances – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Higher Education Support Act 2003
Higher Education Support Act – Administration Guidelines 2012Cases
BHLT and Secretary, Department of Education [2014] AATA 643
HMZP and Secretary, Department of Education [2015] AATA 666
Magliano and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 43
Mills and Secretary, Department of Education [2013] AATA 765
PJPF and Secretary, Department of Education and Training [2016] AATA 833
Sadek and Secretary, Department of Education [2017] AATA 1399
Tralongo and Secretary, Department of Education [2016] AATA 393
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
Zac Han Chow and Secretary, Department of Education and Training [2016] AATA 880
REASONS FOR DECISION
Member W Frost
18 September 2019
INTRODUCTION
The FEE-HELP loan scheme is governed by the Higher Education Support Act 2003 (Act). Under the FEE-HELP scheme, a student may be entitled to financial assistance for the payment of their tuition fees for units of study with a higher education provider. The amount of FEE-HELP assistance is paid by the Commonwealth to the student’s higher education provider in discharge of the student’s liability to pay their tuition fees; the FEE-HELP assistance amount is, in this way, loaned to the student, who is required to repay their FEE-HELP debt through the taxation system once their income has exceeded the compulsory repayment threshold amount for a particular financial year.
The Applicant, Mr Tanveer Khan, applied in August 2018 to Victoria University (University) for remission of his FEE-HELP debt of approximately $12,250 through the re-crediting of that amount to his FEE-HELP balance, following his withdrawal that month from four units of study he commenced in July 2018 for a Graduate Diploma in Migration Law.
Mr Khan claimed that there were special circumstances applying to his withdrawal from the units of study, being family and medical reasons, such that his FEE-HELP balance should be re-credited. The University refused Mr Khan’s application because it determined that he withdrew from the units of study after the University’s ‘census date’, by which time students were required to withdraw from those units without financial penalty, and there were no special circumstances warranting a re-crediting of the tuition fees to offset his FEE-HELP debt.
Because Mr Khan’s FEE-HELP debt is owed to the Commonwealth, not directly to the University, the Respondent is the Secretary of the Department of Education, being the responsible authority for the operation of the FEE-HELP loan scheme.
The Tribunal’s decision relates to Mr Khan’s application for review of the University’s decision declining to re-credit his FEE-HELP balance such that he would have no FEE-HELP debt owing to the Commonwealth. For the reasons that follow, the Tribunal has decided that the University’s decision should be affirmed, meaning that Mr Khan has a FEE-HELP debt to the Commonwealth.
ISSUE
The issue before the Tribunal is whether, pursuant to subsection 104-25(1)(c) of the Act, it is satisfied that special circumstances applied to Mr Khan such that his FEE-HELP balance should be re-credited with an amount equal to the amounts of FEE-HELP assistance he received for the units of study at the University.
BACKGROUND
Mr Khan is 70 years old and a former Information Technology professional with the Australian Public Service (APS).
Following his retirement from the APS, Mr Khan said that he wanted to ‘keep busy’ and work as a qualified migration agent in order to provide assistance to people engaging with Australia’s migration system. To work as a migration agent, Mr Khan was required to complete a Graduate Diploma in Migration Law.
On 28 June 2018, Mr Khan enrolled online in the following four units of study (Units) in the Graduate Diploma in Migration Law at the University:[1]
(i)LML6004: Australia's Visa System 2;
(ii)LML6006: Migration Review Mechanism;
(iii)LML6007: Applied Migration Law; and
(iv)LML6008: Managing Migration Agent Business.
[1] Documents in the bundle of documents lodged with the Tribunal by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 numbered ‘T6’ (pages 58, 61, 65, 69); and ‘T14’ (pages 90-93).
The Units each had an equivalent full-time study load of 0.125 and cost $3,062.50, with Mr Khan’s total FEE-HELP assistance for the Units, and therefore his FEE-HELP debt, being $12,250.[2]
[2] Document numbered ‘T15’, page 94.
The Tribunal notes that the University provided Mr Khan with ‘Advanced Standing’ for four separate units of study in its Graduate Diploma because, in 2010, Mr Khan had completed a Graduate Certificate of Australian Migration Law and Practice at the Australian National University, which was undertaken while he was employed with the APS.
On 23 July 2018, the study period for the Units commenced at the University.[3] Mr Khan acknowledged at hearing that he started the Units on or around 23 July 2018, however he claimed that the full effect of his family and medical issues did not arise until he was required to commence assessment tasks for some or all of the Units on or after the University’s ‘census date’ for the Units, which was 17 August 2018.[4] This ‘census date’ was the last day Mr Khan could withdraw from the Units without financial penalty, being a FEE-HELP debt in the amount of $12,250.
[3] Document numbered ‘T10’, page 85.
[4] Document numbered ‘T15’, page 94.
On 23 August 2018, six days after the University’s census date, Mr Khan withdrew online from the Units and selected the ‘Discontinuation Reason Code’ of ‘personal family reasons’.[5] The University recorded a ‘withdraw’ grade for the Units on Mr Khan’s academic transcript.[6]
[5] Document numbered ‘T13’, page 89.
[6] Document numbered ‘T19’, page 101.
On the same day, Mr Khan applied in writing to the University for the re-crediting of his FEE-HELP balance with the debt that he had incurred for the Units. He acknowledged the census date of 17 August 2018 and said:[7]
Circumstances were beyond my control due to a sudden young death in family. I am 69 years old and ambitious to do the course without realising my health will not allow me to complete the course as I am sick now and unable to concentrate. Also circumstances did not make their full impact on census date as circumstances change suddenly after the census date and I haven't realise that census date is close. I request you to please consider my case kindly and symptheticly. I am a retired person and live on pension. [sic]
[7] Document numbered ‘T14’, page 91.
In September 2018, the University declined Mr Khan’s application for re-crediting of his FEE-HELP balance in relation to the Units.[8] Mr Khan requested a review of the University’s decision.[9]
[8] Document numbered ‘T16’, pages 95-96.
[9] Document numbered ‘T17’, pages 97-99.
In December 2018, the University affirmed its decision not to re-credit Mr Khan’s FEE-HELP balance with an amount equal to the financial assistance he received for the Units. Mr Khan subsequently applied to the Tribunal for review of the University’s decision.[10]
LEGISLATIVE FRAMEWORK
[10] Documents numbered ‘T18’, page 100; and ‘T1’, pages 1-8.
The Higher Education Support Act 2003
Section 3-1 of the Act states that:
This Act primarily provides for the Commonwealth to give financial support for higher education and certain vocational education and training:
(c)through grants and other payments made largely to higher education providers; and
(d)through financial assistance to students (usually in the form of loans).
FEE-HELP is available to students who meet certain requirements for the purpose of undertaking education or training with a higher education provider. Section 101-1 of the Act explains FEE-HELP assistance as follows:
A student may be entitled to FEE-HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met.
The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a higher education provider…to discharge the student’s liability to pay his or her tuition fees.
Section 104-1 of the Act sets out a person’s entitlement to FEE-HELP assistance. This includes where the person meets the citizenship requirements; has been assessed as academically suited to undertake the particular unit of study; and has completed a request for Commonwealth assistance in relation to the unit or course of study.
Pursuant to section 107-1 of the Act, the amount of FEE-HELP assistance to which a student is entitled for a unit of study is the difference between the student’s tuition fee for the unit of study and the sum of any up-front payments made by the student in relation to the unit.
Under section 110-1(1) of the Act, if a student is entitled to an amount of FEE‑HELP assistance for a unit of study with a higher education provider, the Commonwealth must:
(a)as a benefit to the student, lend to the student the amount of FEE‑HELP assistance; and
(b)pay the amount lent to the provider in discharge of the student’s liability to pay his or her tuition fee for the unit.
Section 137-10 of the Act sets out that a person incurs a FEE-HELP debt to the Commonwealth if, under section 110-1, the Commonwealth makes a loan to the person and uses the amount lent to make payment in discharge of the person’s liability to pay his or her tuition fee for a unit of study. In the ordinary course, a FEE-HELP debt begins to be repaid by a person through the tax system once their income has exceeded a specified repayment threshold amount.
The date by which a student must withdraw from a unit of study before incurring a FEE-HELP debt for that unit is identified pursuant to subsections 169-25(1) and (2) of the Act, which state that a higher education provider must determine a ‘census date’ in accordance with the ‘Administration Guidelines’. The ‘census date’ for a unit of study is defined in Schedule 1 of the Act to mean ‘the date determined under section 169-25’ of the Act. Under subsection 169-25(3) of the Act, the higher education provider must publish the census date for the unit of study ‘by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines’. Failure to publish the census date attracts a civil penalty of 60 penalty units under the Act.[11]
[11] Section 169-25(3) of the Act.
Section 104-25(1) of the Act sets out when a higher education provider must, on behalf of the Respondent, re-credit a person’s FEE-HELP balance with an amount equal to the amounts of FEE-HELP assistance the person received for a unit of study, as follows:
(a)the person has been enrolled in the unit with the provider; and
(aa)access to the unit was not provided by Open Universities Australia; and
(b)the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake the unit; and
(c)the provider is satisfied that special circumstances apply to the person (see section 104‑30); and
(d)the person applies in writing to the provider for re-crediting of the FEE‑HELP balance; and
(e)either:
(i) the application is made before the end of the application period under section 104‑35; or
(ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.
Section 104-30 of the Act, regarding the consideration of special circumstances applying to a person seeking a re-credit of their FEE-HELP assistance, relevantly provides that:
1For the purposes of paragraphs 104‑1A(2)(b) and 104‑25(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:
(a)are beyond the person’s control; and
(b)do not make their full impact on the person until on or after the census date for the unit of study in question; and
(c)make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake the unit.
2If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36‑21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Note: The matters referred to in paragraphs 36‑21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS‑HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.
Under section 104-35(1) of the Act, the ‘application period’ referred to in subsection 104-25(e) for a person to apply for the re-crediting of their FEE-HELP balance in relation to a unit of study for which they have withdrawn is 12 months after the day specified in the notice from the higher education provider that the withdrawal has been effected. Mr Khan’s compliance with this requirement was not in issue before the Tribunal.
The Administration Guidelines
Under section 238-10(1) of the Act, the Minister may, by legislative instrument, make Guidelines of various kinds, including ‘Administration Guidelines’, required or permitted to be provided, or necessary or convenient to be provided in order to carry out or give effect to the Act. The Administration Guidelines 2012 commenced on 1 January 2012 and the current version commenced on 6 August 2013 (Administration Guidelines). The Administration Guidelines are a ‘legislative instrument’ within the meaning of that term in section 8 of the Legislation Act 2003 and therefore a decision-maker is bound to apply them.
Item 1 of the table in section 238-10 of the Act permits Administration Guidelines to be made under, among other provisions, section 36-21 of the Act, which relates to special circumstances for Commonwealth supported students. That is, those students with a HECS-HELP debt in relation to a unit of study at a higher education provider. Section 36-20 of the Act notes that the Administration Guidelines ‘also have effect for the purposes of subsection 104-30(2) (re-crediting a person’s FEE-HELP balance)’.
Therefore, pursuant to section 104-30(2) of the Act, any decision of a higher education provider regarding an application to re-credit FEE-HELP assistance due to special circumstances must be made having had regard to the Administration Guidelines.[12]
[12] See also Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at [39].
The purpose of the Administration Guidelines is set out in Chapter 1, which relevantly provides that they:
(d)specify circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:
(i) are beyond the person’s control (paragraph 36-21(1)(a) of the Act);
(ii) do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 36-21(1)(b) of the Act); and
(iii) 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 (paragraph 36-21(1)(c) of the Act).
This purpose is re-stated at Chapter 3 of the Administration Guidelines, which includes detail about each of the above three factors that must be met by a person applying for a re-credit of their FEE-HELP balance due to special circumstances, as follows:
3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1A higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
3.5.5The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.
3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
3.10.1A 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
3.15.1A higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit if circumstances such as the following occur:
(a)medical circumstances. For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or
(b)family/personal circumstances. For example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies; or
(c)employment related circumstances. For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or
(d)course related circumstances. For example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.
A person is unable to complete the requirements for a unit if the person is unable to:
(a)undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or
(b)complete the required assessable work; or
(c)sit the required examinations; or complete any other course requirements because of their inability to meet (a), (b) and (c) above.
The Tribunal notes that the University’s document entitled ‘Remission of Debt, Re-credit of SLE and Post Census Amendment of Enrolment Procedure’[13] mirrors the terms of the Administration Guidelines in relation to the circumstances required for a post-census re-credit of a debt.
[13] Document numbered ‘T3’, page 17.
The Administration Guidelines also note, at Chapter 6, that in accordance with subsection 169-25(3) of the Act, the higher education provider must publish census dates for units of study on the higher education provider’s website on or before the earliest enrolment date for the units of study as determined by the higher education provider. Paragraph 6.30.1 of the Administration Guidelines also states that the census date ‘must not occur less than 20 per cent of the way between the unit commencement and completion dates’. The University’s document entitled ‘Remission of Debt, Re-credit of SLE and Post Census Amendment of Enrolment Policy’[14] publishes the University’s policy on its census dates.
CONTENTIONS
[14] Documents numbered ‘T4’, page 23.
Mr Khan’s contentions
Mr Khan contended that there were family and medical reasons constituting special circumstances that led to his withdrawal from the Units of study at the University. These circumstances, together with the stress of the assessment requirements for the Units, led to a ‘flare up’ of his ulcerative colitis and his subsequent withdrawal from the Units. Mr Khan referred to various additional factors in his separate applications to the Tribunal and to the University, being his arthritic knee, high blood pressure (or hypertension) and the death of his son-in-law in 2016 that required him to assist his widowed daughter to re-locate to Canberra with her four children.
In support of his application to the University for the re-crediting of his FEE-HELP balance, Mr Khan provided two nearly identical medical certificates from his general practitioner, Dr Pradith Southi, both dated 10 September 2018, stating that:[15]
In my opinion Tanveer Khan is suffering from medical conditions such as sever painful arthritic knee and Ulcerative colitis since February 2018. These has been causing sleep interruption and he was unable to concentrate on his studies as a result. I would support his withdrawal from the course.
In my opinion Tanveer Khan is suffering from medical conditions such as severe painful arthritic knee and Ulcerative colitis and has problem concentrate on his studies. I would support his withdrawal from the course. [sic]
[15] Document numbered ‘T14’, pages 92-93.
Additionally, Mr Khan confirmed at hearing that his medical conditions included high blood pressure or hypertension, which condition formed part of his request to the University to review its initial decision on 27 September 2018 declining to re-credit his FEE-HELP balance. Mr Khan’s statement in that application for review was as follows:[16]
I agree with decision maker that medical condition has since February 2018. But beside other issues like high blood pressure, arthritic, I like your kind attention on specifically of decease "Ulcerative colitis" that lead to abdominal pain, diarhea and rectal bleeding gone verse and deteriorated after census date. This cause serious discomfort and stress. Prior to census date condition was not so bad and thought I will manage but unfortunately after one week of census date my condition start getting verse as mention previously. Currently I am on heavy medical doses to control the condition. [sic]
[16] Document numbered ‘T17’, page 98.
By way of written submissions to the Tribunal, provided via email on 23 July 2019, Mr Khan stated, amongst other things, that:[17]
The nature of my illness is such that it flares up when I am stressed. It is a life time disease that I need to self manage without having to go see the Doctor every time.
…
I have self managed any flare ups I have had since that time including the one I had at the time in question. Therefore while my colitis was under control at my last recorded visit with my Doctor, I did have subsequent flare ups which I self managed at home using the advised treatment method by my Doctor.
Further, as I have stated previously, I took on the course to pursue my ambitions after retirement to work as a Migration agent. However, I did not realise at the time that my age and health would not allow me to take on the stress of further studies and complete the course. Which is why I decided to withdraw to stop my health from further deteriorating.
[17] Email from Applicant to Tribunal dated 23 July 2019.
In support of his application before the Tribunal, Mr Khan provided a third medical certificate from Dr Southi, dated 19 February 2019, which states:[18]
In my opinion Tanveer Khan is suffering from medical conditions such as severe painful arthritic knee and the unpredictable flare-ups of Ulcerative colitis since February 2018. It had deteriorated since 17 August 2018 [being the census date].
I certify that there has been progressive increase in his left knee pain due to arthritis and not controlled by usual anti-inflammatory medication. I had referred him to Dr Ihsheish for management and assessment.
As far as his Ulcerative Colitis is concerned I had taught him to self-manage for flare up and this protocol had worked well. He stated he had to increase his medications intermittently from 1 twice daily to 3-4 twice daily in this period for control of flare-ups. The flare-ups might be due to the knee complaint or anti-inflammatory medication use.
Mr Khan's conditions are chronic but the aggravation in 2018 were not due to noncompliance or missing medications. Aggravations in any of his conditions could happen any time and unpredictable. He did not participate in any prohibited sports or lifestyle that might aggravate the conditions.
These have been causing sleep interruptions and difficulties with concentration on his studies as a result. In addition to this, he stated that with the lack of sleep he was experiencing more dizziness and blurred vision which interfered with participating in attending lectures and studies. He was unable to focus or read the materials provided to meet the requirement for the completion of the Units. I would support his withdrawal from the course.
[18] Document numbered ‘ST1’, pages 141 and 159.
Mr Khan also contended at hearing that he had not received notification of the census date from the University. The Respondent conceded that there was no evidence before the Tribunal to confirm that Mr Khan received notification of the University’s census date, however it referred the Tribunal to the requirements under the Act and the Administration Guidelines regarding publication of the census date, including the penalty for not doing so. The Respondent also referred to the University’s various policies and procedures documents that are provided to a student on enrolment in a unit of study that contain reference to the applicable census date.[19] As a result, the Tribunal is satisfied that the University published a census date for the Units and that Mr Khan was provided with notice of the University’s census date at the time of his enrolment in the Units.
[19] Documents numbered ‘T3’, T4’ and ‘T5’, pages 16 to 36.
The Respondent’s contentions
The Respondent contended that Mr Khan did not satisfy any of the special circumstances requirements under section 104-30(1) of the Act and his FEE-HELP balance therefore could not be re-credited with the amount of financial assistance he received for the Units.
In relation to the question of whether circumstances occurred that were beyond Mr Khan’s control, the Respondent acknowledged that Mr Khan’s medical conditions are beyond his control. However, the Respondent contended that there was no evidence that Mr Khan’s medical conditions were so severe that he could not take action or process the information available to him about his enrolment, withdrawal and the census date. The Respondent asserted that the fact Mr Khan’s medical conditions existed before the relevant census date meant it was possible for him to withdraw from the Units before that date. That is, the Respondent said, the withdrawal was within Mr Khan’s control.
In relation to the question of whether the circumstances made their full impact on or after the census date, the Respondent contended that Mr Khan’s medical conditions and family situation pre-dated the census date by a reasonable period of time. For example, Mr Khan had been assisting and supporting his daughter re-locate to Canberra following the tragic death of her husband in 2016. The Respondent acknowledged that this was clearly a traumatic family event, however it had occurred well before Mr Khan enrolled in the Units in June 2018 and, consequently, it could not be said to have made its full impact on or after the census date in August 2018.
In relation to the question of whether the circumstances made it impracticable for Mr Khan to complete the Units, the Respondent asserted that the only factor that prevented Mr Khan from completing the Units was his decision to withdraw from them. In this regard, the Respondent contended that there was no evidence of a causal link between the circumstances raised by Mr Khan for his withdrawal and his non-completion of the Units.
WITNESSES
Mr Khan provided witness statements from his son, Mr Mohammad Ali Khan, and his son-in-law, Mr Gabriel Mustafa. The witness statements confirmed that Mr Khan’s conditions were present before the census date, but that his health had deteriorated since that date. In addition, it was said that the trauma associated with the death of his daughter’s husband adversely affected Mr Khan’s health. Both statements noted that when Mr Khan ‘had to face the pressure of studies’ his health deteriorated.[20]
[20] Exhibit A1, Witness Statement of Mr Mohammed Ali Khan dated 5 August 2019; Exhibit A2, Witness Statement of Mr Gabriel Mustafa dated 8 August 2019.
At hearing, both Mr Mohammad Ali Khan and Mr Mustafa gave evidence regarding Mr Khan’s family and medical circumstances and confirmed that his family had advised him to withdraw from the Units of study when the stress of the assessment requirements and its effect on his health became apparent.
CONSIDERATION
Were the circumstances beyond Mr Khan’s control?
While the Tribunal accepts that Mr Khan’s medical conditions are beyond his control, it is not satisfied that Mr Khan’s circumstances as a whole were beyond his control such that he could not withdraw from the Units of study before the census date. The Tribunal also accepts that Mr Khan’s family situation regarding the 2016 death of his son-in-law and associated events were beyond his control, but it is not satisfied that this meant Mr Khan could not withdraw from the Units ahead of the census date in August 2018.
In relation to Mr Khan’s knee pain, the medical evidence before the Tribunal is that on 26 June 2018, Professor Paul Smith, Orthopaedic Surgeon, wrote to Mr Khan’s general practitioner, Dr Southi, stating that Mr Khan had informed him that the discomfort in his left knee had been present for ‘about a year and over that period it has gradually got worse’. That is, based on Mr Khan’s statement to Dr Southi, the knee pain had arisen in or around June 2017. Professor Smith confirmed that Mr Khan was developing ‘predominantly medial but multicompartmental knee arthritis’.[21] The evidence of Mr Khan’s Patient Medical History from Palmerston Medical Centre confirms his attendance at Dr Southi’s practice on three separate occasions during April and May 2018 for pain in his knee. The medical evidence demonstrates that Mr Khan’s left knee condition was present for approximately one year before he enrolled in the Units in June 2018 and over a year before the census date for the Units in August 2018.
[21] Document numbered ‘ST1’, page 148.
In relation to Mr Khan’s ulcerative colitis, the medical evidence before the Tribunal indicates that Mr Khan has successfully managed his so-called ‘flare-ups’ of this condition over some period of time. Mr Khan stated that this condition was aggravated at around the time he was required to complete assessments for the Units which, on his evidence, was also around the time of the census date. However, Mr Khan also conceded that he managed this particular ‘flare-up’ in accordance with the advice provided by Dr Southi regarding increased medication and that he did not require an appointment with his general practitioner as a result of this mid-August 2018 aggravation. That is, the condition was controlled by Mr Khan at the time of the census date, as it had previously been through increased medication and without requiring medical assistance. In this regard, the aggravation of Mr Khan’s ulcerative colitis and his management of this condition on or around the census date could not be considered to be outside of his control, or ‘unusual, uncommon or abnormal’, as required under the Administration Guidelines.
Mr Khan did not provide any evidence in relation to his high blood pressure or hypertension and there is no medical evidence before the Tribunal to indicate that this was a factor that only arose or worsened on or after the census date on 17 August 2018. Mr Khan indicated at hearing that his blood pressure was one of multiple medical factors that arose from stress. However, Mr Khan did not indicate that this condition developed on or after the census date. Indeed, it appears that this condition has been present for some time preceding Mr Khan’s enrolment in the Units. To this end, Mr Khan’s Patient Medical History indicates that he was prescribed medication for blood pressure or hypertension from at least 18 December 2017. Having regard to the evidence before the Tribunal, it does not consider Mr Khan’s high blood pressure or hypertension arose on or after the census date on 17 August 2018.
Additionally, Mr Khan’s family situation was well known to him in advance of his enrolment in the Units of study. Tragically, Mr Khan’s son-in-law died in 2016. As a result, Mr Khan assisted his widowed daughter re-locate to Canberra with her four children. This traumatic event understandably still reverberates through the family. Although these circumstances were beyond Mr Khan’s control, their full impact undoubtedly occurred before the census date. Moreover, approximately two years after the death of his son-in-law and following the re-location of his daughter and her children to Canberra, Mr Khan felt able to enrol in the Units.
Although the Tribunal has found that Mr Khan received the required notification regarding the applicable census date for the University, the Tribunal notes for completeness that previous decisions have determined that the following factors cannot be considered circumstances that are beyond a student’s control:
(a)lack of knowledge of course or program requirements where that information is readily available;
(b)failure to follow relevant course or program requirements that have been communicated to the student; and
(c)failure to make reasonable or diligent inquiries or to seek assistance from relevant administrative staff of the higher education provider.[22]
[22] Magliano and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 43; Mills and Secretary, Department of Education [2013] AATA 765; BHLT and Secretary, Department of Education [2014] AATA 643; HMZP and Secretary, Department of Education [2015] AATA 666; Tralongo and Secretary, Department of Education [2016] AATA 393; PJPF and Secretary, Department of Education and Training [2016] AATA 833; Zac Han Chow and Secretary, Department of Education and Training [2016] AATA 880.
In Sadek and Secretary, Department of Education [2017] AATA 1399 (Sadek), the Tribunal affirmed a decision refusing the remission of tuition fees where the applicant had suffered fluctuating symptoms of anxiety and depression for many years and failed to withdraw from her studies before the census date. The circumstances in Sadek are analogous to those relating to Mr Khan. For example, the Tribunal in Sadek said that:
While I accept that the applicant’s medical conditions were not “within her control”, the applicant has not sufficiently demonstrated how her circumstances as a whole were beyond her control. Given the ongoing nature of her medical conditions over a number of years, the applicant ought to have understood her capacity to undertake the relevant subjects given the reactive and intermittent nature of her mental health and physiological conditions. The fact that the applicant’s medical conditions existed before the relevant census date meant that it was possible for her to withdraw from the Units before the relevant census date. This was within her control.
Having regard to Mr Khan’s circumstances, and the evidence before the Tribunal, it is not satisfied that his failure to withdraw from the Units before the census date was beyond his control; his circumstances were not ‘unusual, uncommon or abnormal’.[23] Therefore, Mr Khan does not satisfy the requirements of section 104-30(1)(a) of the Act.
[23] Administration Guidelines, paragraph 3.5.5.
Did the circumstances make their full impact on or after the census date?
The Tribunal is not satisfied that Mr Khan’s circumstances made their full impact on him until on or after the census date of 17 August 2018. The Tribunal has found that, based on the medical evidence before it, Mr Khan’s medical conditions pre-dated the census date by a reasonable period of time; they are ongoing and chronic in nature. Although Mr Khan’s circumstances occurred before the census date for the Units at the University, the Tribunal is also not satisfied on the evidence before it that they worsened after that day.
The aforementioned medical certificate from Dr Southi dated 19 February 2019 states that Mr Khan had been suffering from medical conditions ‘such as severe painful arthritic knee and the unpredictable flare-ups of Ulcerative colitis since February 2018’.[24] As previously noted, the census date for the Units was 17 August 2018. In the certificate, Dr Southi states that these conditions ‘had deteriorated since 17 August 2018’.[25]
[24] Document numbered ‘ST1’, page 159.
[25] Document numbered ‘ST1’, page 159.
However, Mr Khan’s medical records do not corroborate Dr Southi’s statement from February 2019. In this regard, Dr Southi states that ‘there has been progressive increase in his left knee pain due to arthritis and not controlled by usual anti-inflammatory medications’.[26] However, despite Dr Southi’s statement that Mr Khan’s knee condition has been present since February 2018, there is no medical record of Mr Khan attending Dr Southi or any other medical professional for his knee condition before April 2018. Indeed, there is no record of Mr Khan attending Dr Southi between January and March 2018.[27] Mr Khan did have various medical appointments in relation to his knee between 23 April 2018 and 28 August 2018. On 26 June 2018, Professor Smith, Orthopaedic Surgeon, informed Dr Southi that Mr Khan ‘has noted the discomfort in his knee for about a year and over that period it has gradually gotten worse’. In addition, while the Tribunal notes that it is outside Professor Smith’s area of specialisation, he did state that Mr Khan ‘has some colitis which is now well under control’. The Tribunal further notes that Mr Khan enrolled in the Units two days after his appointment with Professor Smith on 26 June 2018. Furthermore, a review of Mr Khan by Professor Smith on 28 August 2018, eleven days after the census date, led to Professor Smith informing Dr Southi by letter that, in relation to his knee condition:[28]
I am glad to report that Mr Khan has had a significant improvement in his symptoms with a program of physiotherapy combined with only intermittent use of anti-inflammatories at this point in time.
Mr Khan has certainly benefited and is not in a position where he really does not need to contemplate surgery. I have advised him to continue with the lowest effective dose of anti-inflammatory going forward and maintain his daily exercise regime to maintain the knee.
[26] Document numbered ‘ST1’, page 159.
[27] Document numbered ‘ST1’, page 140.
[28] Document numbered ‘ST1’, page 147.
The medical evidence also indicates that Mr Khan’s ulcerative colitis was being self-managed before the census date, which continued on or around that date when this condition was said to have been aggravated due to the stress Mr Khan experienced as a result of the assessment requirements for the Units. The Tribunal is not satisfied that Mr Khan’s condition made its full impact on him until on or after the census date. Mr Khan’s ulcerative colitis has been long-standing and managed by him during periods when it ‘flares up’, through self-administered medication and without requiring medical assistance or review. For example, Mr Khan’s Patient Medical History indicates that he was prescribed medication for his ulcerative colitis from at least 18 December 2017.[29] In addition, the medical certificate from Dr Southi dated 19 February 2019 states that Mr Khan has been suffering from ulcerative colitis since February 2018.[30] Based on the evidence before the Tribunal, it is satisfied that the full impact of Mr Khan’s ulcerative colitis occurred well before the census date of 17 August 2018.
[29] Exhibit A3, Patient Medical History – Palmerston Medical Centre.
[30] Document numbered ‘ST1’, page 141.
In Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 (Zabaneh), the Tribunal rejected Mr Zabaneh’s claim for a re-crediting of his FEE-HELP balance and stated that:[31]
he has long standing health issues. He suffered from them when enrolled in the units of study and before the relevant Census Dates and continues to suffer from them. They may be beyond his control but they cannot be said not to have made their full impact until after the relevant Census Dates.
[31] Zabaneh at [44].
In addition to Mr Khan’s medical conditions, he did not provide any evidence at hearing about how the circumstances surrounding his son-in-law’s death in 2016 only made their full impact on or after the census date of 17 August 2018. The Tribunal is not satisfied that this tragic event and its repercussions made its full impact on or after the census date or worsened after that time so as to amount to special circumstances that warrant a re-crediting of the FEE-HELP balance.
The Tribunal finds that Mr Khan undertook the Units of study with the intention of completing the Graduate Diploma in Migration Law at the University, with a view to practising as a migration agent. He enrolled in the Units in June 2018 with full knowledge of his various longstanding medical conditions and family situation. Mr Khan commenced the Units of study in July 2018 and, upon realising the stress he felt when undertaking the assessment requirements for the Units was too great, he determined following advice from his family that he should withdraw from the Units. This scenario does not constitute circumstances that were beyond Mr Khan’s control and that occurred on or after the census date, such that they were unusual, uncommon or abnormal. Unfortunately for Mr Khan, he did not lodge an application with the University to re-credit his FEE-HELP balance until six days after the census date, meaning he was ineligible for such a re-crediting because there were no special circumstances attaching to his claim. As a result of this finding, and based on the evidence before the Tribunal, Mr Khan’s circumstances had made their full impact before the census date. Therefore, Mr Khan does not satisfy the requirements of section 104-30(1)(b) of the Act.
Did the circumstances make it impracticable for Mr Khan to complete the Units?
The Tribunal is not satisfied that Mr Khan’s circumstances made it impracticable for him to complete the Units during the relevant period of study in 2018. The contemporaneous evidence included in Mr Khan’s medical records shows that the aggravation of his knee condition occurred as early as April 2018 and was seemingly resolved by August 2018. There is also no medical evidence before the Tribunal regarding any significant change in Mr Khan’s ulcerative colitis that made it impracticable for him to complete the Units in the time period required by the University.
In Zabaneh, the Tribunal found that:[32]
“Impracticable” means “…not able to be done”. On the evidence, it might have been difficult for him to do so but the circumstances on which Mr Zabaneh relies were not such that completion of the requirements of the four units of study was not able to be done.
[32] Zabaneh at [45].
In this regard, given that the Units had not concluded in August 2018, it is not clear to the Tribunal how any aggravation of Mr Khan’s knee condition or ulcerative colitis made it impracticable for him to complete the requirements of the Units. As the Tribunal has found, the assessment requirements for the Units of study made Mr Khan stressed, such that his family advised him to withdraw from the Units. Unfortunately, Mr Khan’s withdrawal from the Units occurred six days after the census date such that his FEE-HELP balance could not be re-credited with the amount of tuition fee assistance he received for the Units unless special circumstances apply to Mr Khan.
Based on the evidence before the Tribunal, it is not satisfied that Mr Khan’s family and medical circumstances made it impracticable for him to continue studying or to complete the Units during the relevant period of study in 2018; the circumstances do not demonstrate that completion of the requirements for the Units was ‘not able to be done’.[33] Therefore, Mr Khan does not satisfy the requirements of section 104-30(1)(c) of the Act.
[33] Zabaneh at [45].
CONCLUSION
Pursuant to section 104-30 of the Act and Chapter 3 of the Administration Guidelines, special circumstances only apply to a person where the circumstances are: beyond a person’s control; and make their full impact on or after the census date; and make it impracticable for the person to complete the requirements for the unit of study during the relevant study period.
The Tribunal finds that Mr Khan’s circumstances as a whole were not beyond his control; his circumstances made their full impact before the census date; and they did not make it impracticable for Mr Khan to complete the requirements for the Units of study at the University. The Tribunal is therefore satisfied that Mr Khan’s circumstances do not amount to special circumstances, as required under section 104-25(1)(c) of the Act, in order for Mr Khan’s FEE-HELP balance to be re-credited with an amount equal to the amount of FEE-HELP assistance he received for the Units of study at University.
DECISION
For the reasons set out above, the Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 67(sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
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Associate
Dated: 18 September 2019
Date(s) of hearing: 2 September 2019 Date final submissions received: 23 July 2019 Applicant:
In person Solicitors for Respondent: Ms Kristina Mihalic, HWL Ebsworth Lawyers
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