Kotlar and Secretary, Department of Education, Science and Training

[2004] AATA 725

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 725

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2003/531

GENERAL ADMINISTRATIVE DIVISION		)
Re		VLADIMIR KOTLAR

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE & TRAINING

Respondent

DECISION

Tribunal  Ms N Bell, Senior Member

Date 8 July 2004

Place Sydney

Decision  The decision under review is affirmed.

………………….

Ms N Bell
  Senior Member

CATCHWORDS

EDUCATION – Higher Education Contribution Scheme (HECS) – HECS debt – whether debt incurred – HECS booklet and declaration discussed – mail problems considered -  whether any special circumstances warranted remitting the debt – whether Applicant unable because of circumstances beyond his control to make an application for remission within 3 months after the census date – the decision under review is affirmed.

Higher Education Funding Act 1988 section 106L

REASONS FOR DECISION

8 July 2004   Ms N Bell, Senior Member

1.        This is an application made by Mr Vladimir Kotlar (“the Applicant”) for a review of a decision of the Department of Education, Science and Training (“the Respondent”) dated 16 April 2003. The decision under review affirmed the decision of 7 March 2003 which was made by the Assistant Director Student Financing Branch not to remove the Higher Education Contribution Scheme debt (“HECS debt”) incurred for one subject in Semester 1, 2001, and four subjects in Semester 2, 2001.

2.        At the hearing on 12 February 2004, the Applicant represented himself and also gave oral evidence. The Applicant had two witnesses who were Mr Meade, work colleague at Millenium Hotel, and Ms Serenity Rixon, friend. Both Mr Mead and Ms Rixon gave oral evidence at the hearing.   The Respondent was represented by Ms Jodie Maurer from the Australian Government Solicitor’s office.  

BACKGROUND

3.        On 29 January 2001 the Applicant enrolled in four subjects for semester one of 2001 and four subjects for semester two of 2001, as part of his Bachelor of Arts course at the University of Sydney (“the University”). As indicated by the Applicant’s Transcript of Academic Record, for semester one of 2001 the subjects were: “Concepts in Biology, World Politics, Information Technology Tools and Psychology 1001” (T15).  For semester two the subjects were: “Human Biology, Australian Politics, Personal Database Tools and Psychology 1002” (T15). The Applicant subsequently withdrew from three subjects from Semester 1.

ISSUES

4.        Section 106J of the Act provides that a semester debt is taken to have been incurred immediately after the relevant census date. If enrolments are not withdrawn, in writing, prior to the census date, a HECS debt is incurred. Section 106L of the Act gives the Respondent power to remit a HECS semester debt in special circumstances. The guidelines for remission of HECS in special circumstances outline the pre-conditions that should exist before a circumstance is considered to be “special”.

5.        Section 106L of the Act provides:

“(1) The Secretary may, in writing, remit the whole or part of a person’s HECS semester debt if:

(a)the person has not completed the course requirements for his or her course of study in respect of a semester during the semester or during the year in which the semester occurred; and

(b)the Secretary is satisfied that special circumstances apply to the person (see subsection (3)); and

(c)the person applies in writing to the Secretary for remission of the debt within 12 months after the person’s withdrawal day in relation to a unit of study in which the person was enrolled for the study period (see subsection (3B)).

…

(3) For the purposes of this section, special circumstances, in relation to a person, include circumstances that the Secretary is satisfied:          

(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 course of study for the semester or the study period (as the case requires); and

(c)make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs, or the units of study for which he or she was enrolled for the study period (as the case requires).”         

6.        The issues before the Tribunal include:

(a) Was the Applicant enrolled at the University of Sydney for Semester 1 and Semester 2 in the academic year 2001?

(b)If so, was a HECS debt incurred?

(c)If so, should the HECS debt be waived due to special circumstances?

WAS THE APPLICANT ENROLLED?

7.        In a letter to the Tribunal on 13 February 2003, the Applicant sought a review of the original decision not to remit his debt (T5, page 7). He stated he never fully enrolled and did not choose subjects for either semester. He said his job circumstances changed, preventing him from creating a roster that would fit around his classes. He said he did not receive any correspondence from the University regarding confirmation of his enrolment.

8.        The Applicant said that his University friend, Ms Serenity Rixon, obtained for him an identification number in order to access his University timetables and subjects from the Internet. The Applicant said he did not at any time provide Ms Rixon with a written authority of any kind to enrol on his behalf.

9.        The Applicant was questioned about the reliability of his postal address. The Applicant said that there have been some instances where there have been problems with the flow of the mail.

10.      The Applicant said that he thought his perceived enrolment would lapse because he didn’t attend class. He commented that his thought process was possibly based on his cultural background and unfamiliarity with current Australian University enrolment procedures.

11.      The Applicant said he did not pay any Union Fees because he wasn’t attending the University. The Applicant stated that his initial intention was to do the course and that is why he signed the Payment Options Declaration Form (“PODF”) since he thought he could pay the Union Fees at a later date. The Applicant does contend that he isn’t sure if he read the PODF. At the hearing the Applicant stated “I should have read it more carefully”. The Applicant said he thought he would only have to pay HECS at the end of his HECS degree once he had actually done the subjects and participated and attended.

12.      The Applicant’s first witness was Mr Meade, the Rooms Division Manager at the Millienium Hotel. Mr Meade said that Mr Kotlar was his direct subordinate during his employment at the Millenium Hotel. Mr Meade said that in September 2000 the Olympics came to Sydney and the Millenium Hotel needed their staff to be flexible. With resources stretched, Mr Meade said it was hard to find experienced and satisfactory people. Mr Meade stated that the hours usually worked at the Hotel were from 7am to 3:30pm and that staff were generally given 1 to 2 weeks notice of late shifts unless there is an emergency. It was a very busy time at the Millenium Hotel till January 2002. The evidence given by Mr Meade elaborated on his letter (T17) which commented that “Vladimir is a manager at the Millenium Hotel and it is necessary that he work these hours. However, as a result he was unable to commence with studies at the University of Sydney”.

13.       The Applicant’s second witness was Ms Serenity Rixon, a University friend. Ms Rixon indicated that on the day of enrolment, she registered herself at the University and enrolled. Ms Rixon stated that she picked up a bundle of papers for the Applicant and gave the documents to him. Ms Rixon also indicated that she got an identification number for the Applicant so that he could access his subject choices from the Internet. Ms Rixon said that she did not enrol on the Applicant’s behalf.

14.      The Tribunal asked the Respondent to provide further documentation regarding the issue of enrolment and this further documentation was received by the Tribunal on 24 March 2004. The Applicant was given a further period of 2 weeks within which to reply to such submissions, however the Tribunal did not receive any documentation from the Applicant within the period ending 7 April 2004.

15.      Ms Maurer provided an affidavit dated 24 March 2004. She deposed as to her instructions that on 13 September 2000 the Applicant lodged an application with the University Admissions Centre (UAC) for admission to University courses in 2001.

16.      Ms Maurer annexed to her affidavit a letter received from UAC with respect to the Applicant dated 19 February 2004 which stated, “Mr Kotlar was offered enrolment in his second preference, Bachelor of Arts at the University of Sydney”. The letter further states that “Universities that have made offers through UAC record acceptances and enrolments on UAC’s database. The University of Sydney recorded that the offer to Mr Kotlar was accepted and that he was enrolled in the Bachelor of Arts at the University. Mr Kotlar authorised Serenity Rixon to act on his behalf with regard to this 2000 application. This authorisation appears on the last page of his application.” The application was annexed to UAC’s letter of 19 February 2004.

17.      In the copy of the UAC Application Form submitted by the Applicant, part 22 is signed by the Applicant and states: “I, Vladimir Kotlar, hereby authorise Serenity Rixon whose signature appears below, to act on my behalf in my absence in matters relating to my UAC application for 2001 Admissions”.  

18.      Also annexed to Ms Maurer’s affidavit was a policy document from the University of Sydney, titled: “Cancellation of enrolment following non-payment of compulsory student charges, local fees or HECS (standard and non-standard teaching periods)”. The Respondent maintained that the policy contained in the document applied in 2001 notwithstanding that its date of effect is stated, on the document, to be 1 December 2002.

19.      The policy document states:

“A student is defined as enrolled when that student has paid, by the prescribed date, all fees owed, comprising compulsory subscriptions, local course fees or HECS as appropriate, or, if deferring to the tax system (either as a HECS or PELS student), has supplied their tax file number (or a “TFN Certificate of Application”). For operational purposes students who have made a part payment, in good faith, by the prescribed date or who have been granted an extension to pay compulsory student charges (not local fees or upfront HECS) will be considered to be enrolled but may have selected sanctions applied pending full payment. While considered enrolled these students will retain an enrolment status of “enrolled not paid”. The operative word here is “enrolled”. All students whose status is “enrolled not paid” are required to formally withdraw if they intend to terminate their enrolment.

…

Students who do not pay any of the charges owing by the due date, and who do not obtain an extension of time to pay (where only compulsory subscriptions are owed), will be sent a reminder to pay within 14 days of the original due by date. If they do not pay within that period they will be sent a further reminder giving an additional 14 days to pay and indicating that if payment is not received either sanctions or enrolment cancellation will be applied depending on the financial circumstances of their enrolment. Consider the following examples in respect of nil payments:

·     Student is deferring their HECS liability to the tax system, has provided a tax file number, but has paid none of the compulsory subscriptions owing. Action: Do not cancel, apply progressive sanctions.”

20.      The Respondent provided to the Tribunal copies of email correspondence dated 17 September 2003 between the Respondent and the University of Sydney regarding the Applicant’s enrolment (Exhibit R2). With regard to the question of enrolment for the whole year or the initial semester 1, the University of Sydney commented:

“It is not compulsory for students to enrol in semester one and two at the beginning of the year, but it is a standard practice. A majority of students do enrol in both semesters in semester one…but they can change/vary their enrolment subsequently”.

21.      In this e-mail correspondence provided by the Respondent, the University of Sydney was asked about whether confirmation had been sent to the Applicant regarding his perceived enrolment. The e-mail states with respect to the Applicant that:

“After the student (or an authorised person on his behalf) enrolled in person, at the University, a confirmation of enrolment form was sent to the student. This form also has the facility on it for students to withdraw from study in writing. It also lists all semester one and two units. The student would not have been sent another confirmation of enrolment form in semester 2 separately.

…

In mid April and in mid September the student was sent a Financial Statement (HECS assessment notice) outlining the current details of the students’ enrolment and fees status (i.e. subjects enrolled in and HECS amount deferred to tax). This notice stated that if the student believed that any detail of their enrolment was incorrect, they should contact their faculty as soon as possible and no later than a given date (usually two weeks later), otherwise the University would not be able to  help them.

Also in 2001, starting in July and December, he would have been sent his results notice. All these documents were posted to the address held on database. This is the same address that appears on the HECS Payment Options Declaration Form faxed to Alison Mills on 16/01/2003.

22.      On the basis of this evidence, I conclude that the Applicant was enrolled in both Semester 1 and Semester 2 subjects in the year 2001. I also note that the Applicant actually withdrew from 3 subjects. This indicates that to some extent the Applicant was aware that he was “enrolled” at the University of Sydney otherwise he would not have appreciated any need to withdraw from specific subjects.

WAS A DEBT INCURRED BY THE APPLICANT?

23.      The T documents at page 12 (T9) include a copy of the Declaration signed by the Applicant as part of his Payment Options Form.

24.      The declaration on the Form contains several components, including the following:

“Part B

11 Declaration – I declare that:

·     I have read the HECS Your Questions Answered booklet and the instructions on who is required to complete this form and am aware of my obligations under the Scheme and the requirement for all withdrawals to be in writing (or other form as required by my institution).

…”

25.      The Applicant gave oral evidence that he wasn’t sure if he read the Payment Options Declaration Form and stated “I should have read it more carefully”. The Applicant said he thought he would only have to pay HECS at the end of his HECS degree once he had actually done the subjects he had requested as part of his enrolment. While the Applicant appeared to have paid no Union Fees to the University, the evidence gained from the University of Sydney policy documents in relation to enrolment indicate that such non payment is not a preclusion to satisfactory enrolment and thus it would appear the Applicant was still enrolled with perhaps the possibility of progressive sanctions being imposed. Based on the evidence, I consider that the Applicant did accrue a HECS debt.

SHOULD THE DEBT BE WAIVED DUE TO SPECIAL CIRCUMSTANCES?

26.      The Applicant’s application for remission of his semester one, 2001 debt was not made, in satisfaction of section 106L(1)(c) of the Act, within 12 months from the last day of the semester. Accordingly there is no discretion under the Act for this particular debt to be remitted in regard to an analysis of “special circumstances”. The debt for that semester cannot be remitted pursuant to section 106L.

27.      In relation to the Applicant’s semester two, 2001 debt, under section 106L(1) of the Act, whole or part of the Applicant’s HECS debt may be considered for remission as he satisfies section 106L(1)(c). The Tribunal must assess whether the Applicant’s circumstances are “special” within the meaning of sections 106L(1) and (3). The Applicant said that his job circumstances changed preventing him from creating a roster that would fit around his University classes. However, Mr Meade’s evidence was that the increase in demand for hours worked by staff at the Millenium Hotel arose out of the 2000 Olympics and persisted until January 2001. This does not account for the remainder of 2001. In any event, even if increased work demands did persist, the Applicant would have been aware of the impact of those increased demands early in 2001 and certainly prior to the census date for his courses in Semester 2 of 2001 (section 106L(3)(b)). For these reasons, I do not consider the Applicant’s circumstances to be “special” within the meaning of section 106L(3).

DECISION

27.      The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         Neil Glaser
  Associate

Date of Hearing  12 February 2004    
Date of Decision                    8 July 2004
Representative for the Applicant              Mr Vladimir Kotlar (Self-represented)
Solicitor for the Respondent  Ms Jodie Maurer