Khan and Secretary, Department of Education and Training

[2017] AATA 1333

Khan and Secretary, Department of Education and Training [2017] AATA 1333 (22 August 2017)

Division:GENERAL DIVISION

File Number:           2016/3642

Re:Muhammad Kashif Afzal Khan

APPLICANT

AndSecretary, Department of Education and Training

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:22 August 2017

Place:Melbourne

The Tribunal affirms the decision under review.

..........................[sgd]..............................................

Miss E A Shanahan, Member

HIGHER EDUCATION – higher education contribution scheme – withdrawal from units of study after census date – application for remission of debt arising – special circumstances – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975
Administration Guidelines 2012

Higher Education Support Act 2003

Cases

BHLT and Secretary, Department of Education [2014] AATA 643

Ellison and Secretary Department of Education, Employment and Workplace Relations [2009] AATA 960

HMZP and Secretary, Department of Education [2015] AATA 666

Miller and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2013] AATA 128

REASONS FOR DECISION

Miss E A Shanahan, Member

22 August 2017

1. Mr Khan enrolled in a Bachelor of Laws Degree at the University of Southern Queensland (USQ) on a part time basis on 29 February 2016.  On 10 March 2016 he increased the number of subjects from two to four equating to part time study at a rate of 0.5 effective full time student load (EFTSL).

2. The census date for this course was 25 March 2016.  The census date represents the last day on which an enrolee can withdraw from the course without attracting a debt. The debts may be the individual’s responsibility or as was Mr Khan’s case, to be funded by the Higher Education Commonwealth Support (HECS) scheme.  Mr Khan applied to the University for Remission of his HECS-HELP debt on the basis of special circumstances.  On 12 May 2016, the university declined the application and following a further reconsideration as requested by Mr Khan the decision was affirmed on 30 June 2016. 

3. Mr Khan lodged an application for further review by the General Division of the Administrative Appeals Tribunal on 12 June 2016. At the hearing before this Tribunal Mr Khan was self-represented and Mr Lex Holcombe solicitor, of HWL Ebsworth Lawyers, appeared for the Secretary, Department of Education and Training (the Secretary). The Secretary lodged the documentation required by s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and Mr Khan tendered a report of his general practitioner Dr Dahalan (Exhibit A1), and photocopies of the hospital records relating to his wife (Exhibit A2). 

   BACKGROUND TO THE APPLICATION

4. Mr Khan is a migration agent operating a full time business in migration consultancy in Victoria.  In 2013 he graduated from the USQ with a Master of Project Management and a Master of Business Administration.  He had undertaken both of these masters’ degrees online as he lived in Perth.  In both degrees Mr Khan accepted the university’s online procedures and guidelines, including those relating to census dates.  Both degrees were undertaken with HECS and he is still repaying this HECS loan.  Mr Khan determined that the added qualification of a Bachelor of Laws would greatly assist his business and initially lodged an enrolment with Victoria University.  He said he then decided to reinstate his studies at USQ online as this assisted him in his time management allowing him to more effectively balance the competing commitments toward his work and family.

5. At hearing Mr Khan agreed that, prior to the relevant census date (25 March 2016), he did not advise USQ of his intention to withdraw nor did Mr Khan dispute that he understood he would incur a financial penalty for failing to withdraw before the census date. It is this financial penalty Mr Khan seeks to have waived on the basis of special circumstances.

6. The special circumstances outlined in both his request to the USQ and to this Tribunal are based on his own medical history of recurrent sinusitis associated with headache, itchy eyes, breathing issues and sleeping difficulties.  He consulted an ear, nose and throat surgeon and was placed on a waiting list for surgery which was not guaranteed to alleviate his symptoms.  As a result of a severe inter-current infection, his planned surgery for April 2016 was cancelled and he lost his place on the waiting list and has been relisted with an unknown date for surgical intervention. 

7. The main special circumstance upon which Mr Khan sought to rely was his wife’s pregnancy. Mrs Khan’s expected delivery date was June 2016. Her pregnancy was however complicated by the development of gestational diabetes mellitus. 

8. The third special circumstance Mr Khan claimed related to the greater commitment to family responsibilities, as a result of his wife’s incapacity. In particular he said he had to drive his two daughters to and from school on a daily basis, which involved an extra two hours of driving per day, as his daughters attended different schools many kilometres apart.  In addition he said he had to undertake more household duties and overall this had increased his level of stress, particularly as his migration consultancy in Melbourne had been busier from the end of 2015 onwards. Mr Khan claimed that the stress of the situation also began to aggravate his sinusitis condition.

9. Mr Khan’s fourth argument in relation to special circumstances related to his perception that the information provided by USQ in relation to the online assessments and their frequency had been deficient and not notified until April, well after the census date.  He gave evidence that he had participated in an online quiz in one of the subjects for which he had enrolled and also had constructed a resilience plan as required.  He considered that the law degree course was more onerous in terms of the assessment requirements in comparison to his previous masters’ degrees. 

10. In summary Mr Khan claimed special circumstances arose as a result of his health issues; his wife’s complicated pregnancy; his increased family commitments; and what he says was unclear course information provided by USQ relating to his degree. He argued that these factors in combination met the criteria for special circumstances.

    EVIDENCE BEFORE THE TRIBUNAL

    Mr Khan

11. Mr Khan’s evidence was summarised under BACKGROUND TO THE APPLICATION, however in the course of cross-examination by Mr Holcombe it was ascertained that the baby had been born on 3 June 2016. Mr Khan conceded that the major impact of his wife’s pregnancy on his ability to undertake the course occurred after the census date, he having been drawn in cross-examination to his wife’s diabetes diary and medical records. These revealed she had been having insulin treatment since November 2015 and had first been diagnosed with gestational diabetes in her second pregnancy, and thus he was well aware of the risk of recurrence of the condition.  He also agreed that the records showed that she had been able to drive a motor vehicle until the end of March 2016. 

12. In relation to the sinusitis and headache, Mr Khan agreed that there had been no deterioration of these conditions before the census date. 

    DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

    University of Southern Queensland

13. USQ provided both the Tribunal and Mr Khan with detailed information including:

    ·a document entitled Enrolment Procedure;

    ·the relevant legislation relating to higher education support;

    ·related policy forms;

    ·publications and websites;

    ·important dates in 2016;

    ·waiver of academic penalties and fee reversal including supporting documentation required; and

    ·the details of Mr Khan’s enrolment both in his early degrees and that of Bachelor of Law in 2016.

    ·course specification was also included in the documentation and details the subjects and their weighting in terms of marking.  This includes attendance requirements and assessment requirements but does not detail the actual assessment structure.  The data also includes a description of special circumstances with particular reference to the legislation.

    Werribee Mercy Hospital Records

14. Mrs Khan was seen on a regular basis in the Endocrinology and Obstetric Outpatient clinics of Werribee Mercy Hospital.  She was required to keep what is called a diabetes diary, extracts from which were provided to the Tribunal.  These show that she commenced insulin injections for her gestational diabetes in November 2015 and that thereafter control was acceptable, except for occasional elevated blood glucose levels generally after lunch.  She had been booked well in advance for an elective caesarean section on 6 June 2016 as her two earlier deliveries were by caesarean section.

15. Mrs Khan remains diabetic post-delivery but no longer requires insulin injections.  She is now managed with oral hypoglycaemic medication.

    Medical Certificate

16. Dr Nisreen Dahalan (Exhibit A1) provided a letter (undated) stating that she was the general practitioner treating Mrs Khan who, at the time of her husband’s withdrawal from the Bachelor of Laws course, had needed extra care at home from her husband as a result of her third pregnancy during which she had developed a few pregnancy related complications.  This letter stated that Mrs Khan’s medical condition worsened in around April 2016. 

17. Mr Khan provided a receipt and Medicare statement to the effect that he had seen Dr Russel Calder, an ear, nose and throat surgeon, in March 2016.

    RELEVANT LEGISLATION

18. The Higher Education Support Act 2003 outlines the HECS-HELP assistance scheme and at s 87(1) provides:

    HECS-HELP Assistance

    87-1  What this Part is about

19. Section 36‑20(1) provides for a person to apply to a higher education provider, for remission of the person’s HECS-HELP debt in respect of unit of study, in accordance with:

    36 20  Providers to repay amounts—special circumstances

    (1)A higher education provider must, on the *Secretary’s behalf, determine that this section applies to a person if:

    ...

    (d)the provider is satisfied that special circumstances apply to the person (see section 36 21); and

    (e)the person applies in writing to that provider for either or both:

    (i)     the repayment of any amounts that the person paid in relation to his or her *student contribution amount for the unit; or

    (ii)     the remission of the person’s *HECS HELP debt in relation to the unit; and

    (f)either:

    (i)     the application is made before the end of the application period under section 36 22; 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.

    And where special circumstances are to apply Section 36-20(2) of the Act states:

    (2)If the provider determines that this section applies to a person, the provider must:

    (a)pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and

    (b)pay to the Commonwealth an amount equal to any *HECS HELP assistance to which the person was entitled for the unit.

    Special circumstances are circumscribed by s 36-21(1) and (2) which provide:

    36 21  Special circumstances

    (1)For the purposes of paragraph 36 20(1)(d), special circumstances apply to the person if and only if the higher education provider 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; and

    (c)make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.

    (2)The Administration Guidelines 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.

20. All of the subsections of 36-21(1) must be met.  A failure to meet any one of the criteria results in the application for re-credit to not succeed.

    Administration Guidelines 2012

21. The Higher Education Support Act 2003 - Administration Guidelines 2012 (the Guidelines) are a legislative instrument. Section 36-21(2) of the Act provides that a decision of a higher education provider must be in accordance with the Guidelines.  These are as follows:

    CHAPTER 3    SPECIAL CIRCUMSTANCES

    3.1PURPOSE

    3.1.1The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:

    (a)are beyond the person’s control (paragraph 36-21(1)(a) of the Act);

    (b)do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 36-21(1)(b) of the Act); and

    (c)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).

    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 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.

    3.15CIRCUMSTANCES 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 unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies; or

    (c)employment related circumstances. For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or

    (d)course related circumstances. For example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.

    A person is unable to complete the requirements for a unit if the person is unable to:

    (a)undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or

    (b)complete the required assessable work; or

    (c)sit the required examinations; or

    (d)complete any other course requirements because of their inability to meet (a), (b) and (c) above.

    SUBMISSIONS

22. Both parties relied primarily on their written Statement of Facts, Issues and Contentions.

23. Mr Khan submitted that a combination of factors, namely his wife’s pregnancy with gestational diabetes and a need for insulin injections, his increased responsibilities in relation to the children and an increase in his work load as well as his own illness (although this had been constant for many years), combined to increase his levels of stress and his inability to cope.  He contended that these multifactorial causes of his inability to continue with his course amount to special circumstances.

    The Respondent

24. The respondent addressed the evidence before the Tribunal and the chronology of events.  It was submitted that Mrs Khan’s pregnancy was relatively uncomplicated other than diabetes requiring insulin injections, the diabetes having been a feature of earlier,  pregnancies  prior to Mr Khan’s enrolment for a Bachelor of Laws degree with USQ.  Similarly, Mr Khan’s chronic sinusitis and recurrent infections had been present for some years and in his evidence he had agreed that this had not changed during the period of his enrolment for the Bachelor of Laws degree with USQ.  While it was acknowledged that he might have increased household domestic duties, these were not special circumstances in accordance with the tests provided under the Act and the Guide. 

25. While Mr Khan also submitted that his workload and his age were factors which impacted his ability to undertake the course the respondent submitted no evidence had been produced to support this contention. 

26. Submissions were made in relation to each of the administrative guideline provisions relating to special circumstances contained in s 3.1. In relation to the requirement that these be beyond the person’s control it was argued that this was negated by the fact that he had failed to withdraw from the units before the census date, something that was well within his control. 

27. With respect to s 3.1(b) relating to the special circumstances not making a full impact on the person until on or after the census date for the unit, Mr Holcombe contended that there was little or inadequate evidence as to how Mr Khan’s circumstances had worsened after the census date. 

28. In relation to the third criteria, was it impracticable for the applicant to complete the requirements of the unit during the period in which he was to undertake that unit, the respondent submitted that there was no evidence provided by the applicant in support of this contention. 

29. Mr Holcombe referred to the decisions of Ellison and Secretary Department of Education, Employment and Workplace Relations [2009] AATA 960, where the special circumstance raised was a lack of knowledge of the census date, as well as other family difficulties which were clearly circumstances within Ms Ellison’s control. The decision in Miller and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2013] AATA 128 concerned an increase in the applicant’s workload which he said impacted on his ability to complete four units of study. Senior Member Ettinger held this was not a special circumstance, but this was so because of the applicant’s late withdrawal from the course which was something well within his control. Mr Holcombe also made reference to the decision of BHLT and Secretary, Department of Education [2014] AATA 643, where it was determined that the applicant’s claim that she was unaware of the census date was considered implausible given the information she had been provided with.

30. In HMZP and Secretary, Department of Education [2015] AATA 666 the Tribunal accepted that the applicant’s grief relating to the death of his brother a year before was a situation beyond his control. However the Tribunal rejected the contention that this was a special circumstance insofar as the circumstance bore no temporal relation to the applicant missing a census date a year later. In addition the applicant had managed to complete other units of study for which he had enrolled in September 2013.

    TRIBUNAL’S DELIBERATIONS

1. The Tribunal is only able to reverse the decision under review where it is satisfied that there are special circumstances applying to Mr Khan.  The relevant special circumstances are outlined s 36-21 of the Act and were discussed by the respondent and the applicant. 

2. The Tribunal must first address whether the circumstances Mr Khan faced prior to the census date of 25 March 2016 were beyond his control.  While it was not necessarily beyond Mr Khan’s control that his wife became pregnant in September 2015, it was certainly beyond his control that she should again develop gestational diabetes and require insulin therapy.  However, the evidence before the Tribunal is that Mrs Khan’s pregnancy was well supervised and she remained in good health. She was obviously concerned regarding the health of her unborn child, given her previous complications.

3. The evidence shows Mrs Khan could drive her vehicle until at least the end of March, before having to cease driving.  Mr Khan’s health problems had been in existence for several months and there is no evidence that they got worse in the period up to the census date, although he subsequently cancelled planned surgery. 

4. Mr Khan’s workload is said to have increased in 2016 but no evidence was provided to support this contention.  The requirement that he perform more in the way of household tasks and care for his two daughters cannot be considered as being beyond his control. Furthermore, his contention that he had not been provided with sufficient information in terms of the law subjects’ assessment was within his control as he only had to make further enquiries of USQ. 

5. The second question to be answered is whether or not Mr Khan’s circumstances or change in circumstances did not make their full impact until after 25 March 2016.  There is nothing in the reports of the Werribee Mercy Hospital that indicates there was any change in Mrs Khan’s health status after this date nor has Mr Khan made such a submission.  She may well have not been able to drive after the end of March but there was no increase in his caring for the children or driving them to school according to the evidence he has given before the Tribunal. 

6. While Mr Khan claimed that he only became aware of how onerous the assessments of his law subjects were in early April 2016, the onus was on him to ascertain the assessment process if he was concerned.  It is noted that Mr Khan had completed two degrees with the same university in the online forum and it would be expected that he was familiar with the university’s processes and criteria as these have not changed since 2009 according to the documentation provided.  No evidence was produced that there was a change in his workload between March and his withdrawal and while he may have felt more stressed by a combination of factors, there is no medical evidence to support that argument.

7. The Guidelines in relation to circumstances that may make it impracticable for an individual to complete the requirements provide examples of such circumstances, these being medical, family/personal and employment related or course related circumstances.  The examples of course related circumstances provided were that the individual is unable to undertake the necessary private study required or attend lectures or tutorials, complete the assessable work, sit the examinations or complete any other course requirement because of these other factors. 

8. The evidence before the Tribunal is that Mr Khan did not undertake any of the assessments although he believes he completed one quiz and a resilience exercise.  Mr Khan made his application, by letter dated 19 April 2016, for waiver of the financial penalties for dropping the courses after the census date.  There is no evidence before the Tribunal of any change in medical circumstances, family or personal circumstances, or employment related circumstances whatsoever. The only course related circumstances that are discernible are Mr Khan’s realisation that the assessment process was more complex than he had anticipated, something he should have acquainted himself with before the census date.

9. The Tribunal determines there are no special circumstances present to waive the fees for Mr Khan’s enrolled courses in four law subjects at the USQ. 

I certify that the preceding 39 (thirty‑nine) paragraphs are a true copy of the reasons for the decision herein of:

Miss E A Shanahan, Member

.......................[sgd].................................................

Associate

Dated: 22 August 2017

Date of hearing:	15 May 2017
Applicant:	In person
Solicitor for Respondent:	Mr Lex Holcombe - HWL Ebsworth Lawyers

APPENDIX

A1       Medical Certificates – Mr Muhammad Kashif Khan dated 4 March 2016

A2       Medical Certificates – Mrs Shamaila Khan dated 1 Feb 2016 – 16 June 2016

R1      T-Documents