Last and Secretary, Department of Education and Training - [2019] AATA 658

Last and Secretary, Department of Education and Training [2019] AATA 658 (8 April 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4656
Re:Holly Last
APPLICANT

AndSecretary, Department of Education and Training
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:8 April 2019
Place:Sydney

The decision under review is affirmed.
............................[sgd]............................................
Chris Puplick AM, Senior Member
Catchwords
EDUCATION – FEE-HELP debt – application for remittal of debt – standard of units delivered – applicant completed units – does not satisfy special circumstances - decision under review affirmed
Legislation
Higher Education Support Act 2003 (Cth)
Income Tax Assessment Act 1997 (Cth)
Migration Regulations 1994 (Cth)
Tertiary Education and Quality Assurance Agency Act 2011 (Cth)
Cases
Alagaretnam v Minister for Immigration, Multiculturalism and Indigenous Affairs [2006] FCA 367
Amalgamated Society of Engineers v Adelaide Steamship Company Ltd [1920] HCA 54
Ban v Minister for Immigration [2006] FMCA 1693
Bradley v Secretary, Department of Education and Training [2018] AATA 1074
Brown v Secretary, Department of Education and Training [2015] AATA 518
McKinnon v Secretary, Department of the Treasury [2006] HCA 45
Re Nash [No 2] [2017] HCA 52
Re Wood [1988] 167 CLR 145
Riaz v Minister for Immigration [2013] FCCA 2244
Sapkota v Minister for Immigration and Citizenship [2012] FCA 981
Venkatesan v Minister for Immigration and Citizenship [2008] FMCA 409
Williams v The Official Assignee of the Estate of William Dunn [1908] HCA 27
Secondary Materials
Jacques Derrida, “Cogito and the History of Madness” in Writing and Difference (trans. A Bass, Routledge, London, 1978)
Lewis Carroll, Alice Through the Looking Glass (Penguin edition 1965, London)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
8 April 2019
BACKGROUND

This is an appeal by Ms Holly Last (the Applicant) against a decision made by the Australian Institute of Music (AIM) (represented by the Secretary, Department of Education and Training, the Respondent) to refuse her request for a remittal of her FEE-HELP debt.
That refusal decision was made initially by AIM on 27 July 2018, whereupon the Applicant requested an internal review of the decision. That review affirmed the original denial decision on 14 August 2018 and on the same date the Applicant lodged her review appeal with this Tribunal.
FEE-HELP is a form of student loan paid by the Commonwealth to the educational institution in order to cover a student’s tuition fees for courses or units of courses in which they are enrolled. The scheme is established under the Higher Education Support Act 2003 (the Act). Such loans are repayable to the Commonwealth once the subsidised course/unit of study has been completed unless the recipient makes an application for the debt to be remitted. This can occur where the applicant in question meets certain definitional criteria and thereafter it is determined that “special circumstances” apply which would justify the remittal.
POSITION OF THE PARTIES
The essential basis of the Applicant’s claim is that, while she completed certain units of study, she had, in effect been misled by the AIM in three material ways: the course in which she enrolled was significantly changed and did not conform to the outline of the course as originally advertised; the quality of teaching was substandard to the extent that she did not have the opportunity to learn what she expected to and the methods used to assess her work were flawed and without a rational basis.
In response, the Respondent states that the Applicant nevertheless, regardless of her grievances, completed and was graded in relation to several units of study which she continued to undertake and that, as a result, having completed those units she is statute-barred from seeking remittal of her FEE-HELP debt.
It is necessary to set out a few dates relevant to this application:
·20 January 2018 the Applicant enrolled in certain study units at AIM;
·24 January 2018 the Applicant completed a FEE-HELP request;
·The units of study in which the Applicant had enrolled had a “census” date of 15 February 2018;
·On or about 5 June 2018 the Applicant withdrew formally, with notification by email and later on a prescribed form, from the course in which she was enrolled;
·12 September 2018 the Student Services Department of AIM issued a “record of Results” for the five units of study completed by the Applicant in Study Period 1 of 2018.
LEGISLATIVE FRAMEWORK
It is necessary to understand the framework within which FEE-HELP is paid and where provisions are made for possible remittal or refund of payments.
Section 137.0 of the Act provides:
137.10 FEE-HELP debts
Incurring FEE-HELP debts
(1) A person incurs a debt to the Commonwealth if, under section 110-1, the Commonwealth:
(a) makes a loan to the person; and
(b) uses the amount lent to make a payment in discharge of the person’s liability to pay his or her *tuition fee for a unit of study.
The debt is a FEE-HELP debt.
(2) The amount of the *FEE-HELP debt is:
(a) if the loan relates to *FEE-HELP assistance for a unit of study that forms part of an *undergraduate course of study—an amount equal to 125% of the loan; or
(b) if paragraph (a) does not apply—the amount of the loan.
When FEE-HELP debts are incurred
(3) A *FEE-HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *tuition fee for the unit.
Remission of FEE-HELP debts
(4) A person’s *FEE-HELP debt in relation to a unit of study is taken to be remitted if the person’s *FEE-HELP balance is re-credited under section 104-25, 104-27, 104-42, 104-43 or 104-44 in relation to the unit.
This makes it clear that a personal debt is incurred when the Commonwealth makes a loan to a person and this loan is used for the purposes of paying a tuition fee for “a unit of study.”
There are three particular points of relevance in this matter are to be noted here:
1.Payments are made and a debt is incurred only after the census date. That is the date upon which the student is taken to have commenced their course of study and the date before which they can elect to withdraw from a course;
2.The payment is related to “a unit” of study[1] – it is not a payment related simply to an entire course or semester or session but to a “unit”;
3.Remittal is possible provided that the conditions imposed in section 104-25 (among others) are met.
[1] As defined in Schedule 1 of the Act as being in effect “part of a course of study”.
Thereafter, the relevant sections of the Act are:
104.25 Main case of re-crediting a person’s FEE-HELP balance
(1A) If section 104-42 applies to re-credit a person’s *FEE-HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person has received for a unit of study, then this section does not apply in relation to that unit.
(1) A higher education provider must, on the *Secretary’s behalf, re-credit a person’s *FEE-HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if:
(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.
(2) *Open Universities Australia must, on the *Secretary’s behalf, re-credit a person’s *FEE-HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person has received for a unit of study if:
(a) access to the unit was 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) Open Universities Australia is satisfied that special circumstances apply to the person (see section 104-30); and
(d) the person applies in writing to Open Universities Australia 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) Open Universities Australia 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.
(3) If the provider is unable to act for one or more of the purposes of subsection (1) or (2), or section 104-30, 104-35 or 104-40, the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary
104.30 Special circumstances
(1) For 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.
(2) If 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.
(3) For the purposes of paragraph 104-25(2)(c), special circumstances apply to the person if and only if *Open Universities Australia 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.
THE PROCESSES OF CONSIDERATION
Whether or not “special circumstances” exist under section 104.30 is a matter which can be determined only after a threshold question has been resolved, namely, has the applicant “completed the requirements for the unit during the period during which the person undertook, or was to undertake the unit” (section 104.25(1)(b)). If the applicant has “completed” the unit then clearly they are barred by the express terms of the legislation from being considered for “special circumstances” which may lead to a fee remittal.
Students are aware of these provisions because they are provided with a FEE-HELP Information Booklet at the beginning of their enrolment process. On 24 January 2018 the Applicant completed a FEE-HELP request form which required her to declare that she had read the Booklet and understood her obligations under the scheme.[2] That Booklet states explicitly:
“You cannot have your [FEE-HELP] debt removed if you have already successfully completed your unit of study. Changing your mind or failing a unit are not good enough reasons to apply for special circumstances and you will still be required to pay your HELP debt.”[3]
[2] Section 37 Tribunal Documents at [73-74].
[3] Section 37 Tribunal Documents at [214].
HAD THE APPLICANT “COMPLETED” THE REQUIREMENTS?
The word “completed” is not defined in the legislation, unlike, for example sections 995-1(1) and 376-55(2) of the Income Tax Assessment Act which were introduced because there were disputes about what constituted the “completion” of a film eligible for taxation concessions.
There are also examples of the definition of completion of required courses of studies contained in the Migration Regulations, for example at 1.15F, 1128CA or 1128BA in terms such as:
“completed, in relation to a degree, means having met the academic qualifications for its award.”
This means, in effect, that it is open to the institution to establish the rules by which a degree, diploma or trade qualification is determined to be awarded and that this necessarily involves them establishing, to their satisfaction that the approved unit or course of study has been completed.[4]
[4] Sapkota v Minister for Immigration and Citizenship [2012] FCA 981; Venkatesan v Minister for Immigration and Citizenship [2008] FMCA 409; Riaz v Minister for Immigration [2013] FCCA 2244; Alagaretnam v Minister for Immigration, Multiculturalism and Indigenous Affairs [2006] FCA 367.
The best that can be offered in this case, as far as any definition of completion is concerned is the definition given by the Tertiary Education and Quality Assurance Agency which is the national regulator of tertiary education standards under the Tertiary Education and Quality Assurance Agency Act 2011. It defines “course completion”, in part as:
“the successful completion of all of the academic requirements of a course of study. This includes any required attendance, assignments, examinations, assessments, dissertations, practical experience and work experience in industry….”[5]
[5] Respondent’s Statement of Facts, Issues and Contentions at [30].
The Applicant was an assiduous student and completed all the required elements set out above, and indeed did so at a high level of attainment.
In the absence of any clear definition in the Act, there must be reliance upon the ordinary meaning of the word. Because the Applicant advances an argument which, in effect, calls into question the issue of whether or not she “completed” certain parts of her studies, it is necessary to make this point clear.
As far back as 1908 the High Court stated:
“The first rule in the interpretation of statutes is that the Legislature will be taken to have used words in their ordinary meaning…….. there must be some strong ground for attaching to the words used a meaning different from the ordinary meaning.”[6]
[6] Williams v The Official Assignee of the Estate of William Dunn [1908] HCA 27 per O’Connor J.
More recently, the High Court has again stated:
“The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them.”[7]
[7] McKinnon v Secretary, Department of the Treasury [2006] HCA 45 at [60] per Hayne J.
The adoption of such a principle may not, in some instances, be productive of the outcomes sought by applicants, as the High Court recognised when it said:
“The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.”[8]
[8] Amalgamated Society of Engineers v Adelaide Steamship Company Ltd [1920] HCA 54 per Higgins J.
This much was evidenced when Ms Holly Hughes found herself unable to be declared elected to the Senate because she held an office of profit under the Crown at a time when the High Court found that a Senate election had not been “completed”.[9]
[9] Re Nash [No 2] [2017] HCA 52 at [39]. See also in re Wood [1988] 167 CLR 145 at [164].
The ordinary meaning of “completed” was argued in Ban in the following terms:
[53] The Applicant submits that it is appropriate to consider the dictionary definition of the word "complete". Reference was made to the definition which Mr Cain claimed appears in the Shorter Oxford Dictionary as: “Having all its parts or elements”, “Entire”, “Full”, “Total”.
[54] It is perhaps useful to note that The New Shorter Oxford English Dictionary includes in the definition, “complete”, “finish, fulfil, Having all its parts or elements; entire, full, total … ”, “Finished, concluded, having run its full course”.[10]
[10] Ban v Minister for Immigration [2006] FMCA 1693.
The Macquarie Concise Dictionary gives:
“1. having all its parts or elements; whole, entire, full. 2. Finished, ended, concluded…..”
There is no room for the Tribunal to adopt the Humpty-Dumpty principle that a word “means what I choose it to mean – neither more or less”[11], nor deconstructionism’s différance principle of purely contextualised exposition.[12] Completed means completed.
[11] Lewis Carroll, Alice Through the Looking Glass (Penguin edition 1965, London) p. 269.
[12] Jacques Derrida, “Cogito and the History of Madness” in Writing and Difference (trans. A Bass, Routledge, London, 1978).
Throughout Study Period 1, 2018 the Applicant was enrolled in five units of study at AIM. These were: Music Materials and Techniques 1 (G1MM1); Tertiary Studies (G1TM1); Ensemble 1 (P1EN1); Movement for Stage 1 (P3MV1) and Performance Studies Music Theatre 1 (P3PS1).
Although, as will be discussed below, the Applicant had issues with these various courses which she took up with the Institute’s authorities, she proceeded with them and was eventually graded in each. She received two High Distinctions for the first two courses; a Credit for the next two and a Distinction for the final unit.[13]
[13] Section 37 Tribunal Documents at [17] and [145].
There can thus be no doubt in the mind of the Tribunal that the Applicant “completed” the units of study for which a FEE-HELP debt had been incurred.
CONSIDERATIONS
In fairness to the Applicant, the Tribunal accepts that it should give some consideration to her concerns that what she completed was not what she had been led to believe she would be studying.
Her position is that the AIM failed her in that:
·Changes were made in the units or the course which caused it to be significantly different from that which she believed was offered in the original prospectus;
·Some units were not properly taught, either because they were not taught in their entirety or in conformity with the course outline;
·There was a lack of feedback on marking or criteria issues and a lack of guidance as to what was expected in elements of the units such as the viva voces;
·Assessments were not properly conducted, either because the basis of their assessment was neither valid nor transparent or else because the assessors were, for a variety of reasons, unqualified.[14]
[14] Ibid at [134-137]; Respondent’s Statement of Facts, Issues and Contentions at [26].
These assertions are refuted in a number of submissions from Institute staff, including the Director, Academic Affairs (Dr Alistair Noble), the Student Services Manager (Ms Jennifer Fenner) and the Head of Quality, Planning and Registration (Mr Patrick Nellestein). [15]
[15] Respectively annexures to the Respondent’s Statement of Facts, Issues and Contentions.
These refutations were before the Tribunal at the hearing and not expressly challenged or contradicted by the Applicant.
On the other hand, there is evidence in emails from Dr Noble that he agreed with at least some of the Applicant’s concerns. For example on 6 April 2018 he emailed her in the following terms:
“As head of School, I have been very worried about assessment procedures in the MT area for the past 12 months. To be honest, there has been a lot of resistance from the department to making any improvements. For example, new and clearer assessment details were approved by the Learning Teaching Committee of AIM last December but it seems Jen never explained them to teachers – and teachers do not refer to SharePoint often enough. The marking rubrics should have been developed before term started but MT staff did not do it.”[16]
[16] Applicant’s Additional Documents at [4].

The Tribunal is in no position to comment on most of the Applicant’s grievances or complaints. There is simply no evidence before the Tribunal which would, in any case, allow it to do so. For example, the Prospectus issued by AIM in relation to the Applicant’s course, Bachelor of Music (Music Theatre) says no more than:
“Bachelor of Music: Create, compose, mix, record and master your musical style. If you eat, sleep and breathe music, this is the degree for you. Sustainable and innovative career options abound in all six of AIM’s Bachelor of Music majors.
Music Theatre: Amplify your music, dance and acting talents, and refine your production, directing and stagecraft skills.”[17]
[17] Australian Institute of Music: Prospectus at [27].
It is even more certain that the Tribunal has no role in determining the quality of academic assessments. There are formal mechanisms for this – none of which involve the Tribunal.
However it is evident from the material before the Tribunal that the Applicant was assiduous in pursuing her complaints with the appropriate senior staff at an early stage and that they in turn conceded that some of her points were valid and some elements of the course delivery less than satisfactory.
Were the Tribunal to consider whether or not some of the special circumstances set out in section 104-30, especially the three elements of 104-30(1), applied to the Applicant it would recognise that she has a very plausible case which would need significant further investigation to determine.
However the Tribunal has previously come to the conclusion that the Applicant had completed the units of study in which she was enrolled, even if, as she saw them, they were not what she contemplated as a student, and she did not learn from them what she expected.
In Bradley, this Tribunal dealt with another student loan case (in this instance HECS-HELP) where the Tribunal agreed that the applicant had “significant and genuine grievances about his experiences” but, applying the analogous provisions covering that scheme, was unable to accord him any relief on the basis that:
“[he] completed all the units of study for which he seeks remission of his HECS-HLP debt between 2002 and 2005. This means the Secretary has no legislative power to remit his debt …”[18]
[18] Bradley v Secretary, Department of Education and Training [2018] AATA 1074 at [30] and [31].
Again, there may be some sympathy for the Applicant’s position in not withdrawing from the course before the census date. That date was only some two weeks from the commencement date and it may well have been that the Applicant’s appreciation of her concerns about the course were not apparent to her by that time.
The Applicant told the Tribunal that she formally withdrew (by submitting both an email and the required documentation) some time in the week commencing 7 June 2018, which was a date prior to the census date for Study Period 2.
There is no evidence before the Tribunal to this effect but there is an email from the Applicant to the effect that the Institute had apparently misplaced her notice of withdrawal.[19] Again there is no further corroborative evidence on this point. That having been said, the Tribunal finds no grounds to disbelieve the Applicant in relation to this matter.
[19] Applicant’s Additional Documents at [27].
However, failure to withdraw from Study Period 1 within what is the legislatively prescribed time[20] and her obvious completion of the units in Study Period 1 leaves the Applicant’s case without a firm foundation. Given this, her application for remittal of her debt cannot be considered because such consideration is, legislatively, not available to her.
[20] Brown v Secretary, Department of Education and Training [2015] AATA 518.
DECISION
The decision under review is affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 8 April 2019

Date(s) of hearing: 1 April 2019

Applicant: In person

Solicitors for the Respondent: Ms S Harris, Department of Education and Training (by phone)

Date(s) of hearing:	1 April 2019
Applicant:	In person
Solicitors for the Respondent:	Ms S Harris, Department of Education and Training (by phone)