Lazaris and Secretary, Department of Employment

[2022] AATA 3787

Lazaris and Secretary, Department of Employment [2022] AATA 3787 (7 October 2022)

Division:GENERAL DIVISION

File Number:               2022/1673

Re:William Lazaris

APPLICANT

AndSecretary, Department of Employment

RESPONDENT

Decision

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:7 October 2022

Date of written reasons:         9 November 2022

Place:Sydney

The decision under review is affirmed.

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

EDUCATION, SKILLS AND TRAINING – higher education funding – whether the applicant’s HECS-HELP debt may be remitted – loss of employment – whether the applicant faced ‘special circumstances’ – decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)

CASES

Bow and Secretary, Department of Education [2020] AATA 114
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
HMZP and Secretary, Department of Education [2015] AATA 666
Lushchayev and Secretary, Department of Education, Skills and Employment [2022] AATA374
Montenegro v Secretary, Department of Education [2020] FCAFC 210
Nacol and Secretary, Department of Education, Skills and Employment [2022] AATA 1033
Ullah and Secretary, Department of Education and Training [2018] AATA 2159
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
Legislation

SECONDARY MATERIALS

Administration Guidelines 2012 (Cth)

Higher Education Support (Administration) Guidelines 2022 (Cth)

WRITTEN REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

9 November 2022

INTRODUCTION

1. Mr William Lazaris (the applicant) is studying a double degree at the University of New South Wales (UNSW), namely, Engineering (Hons)/Science. In 2021, he applied for fee remission for two units of study taken in the second semester of 2021 by reason of special circumstances. On 25 February 2022, the University decided that the special circumstances identified by the Applicant did not meet the criteria in section 36-21 of the Higher Education Support Act 2003 (Cth) (‘the Act’), (the reviewable decision).[1] He therefore applied to the Tribunal on 26 February 2022 for merits review of the decision.

   [1] T20, 138.

2. The application was heard on 7 October 2022 by videoconference. The applicant was self-represented. The Respondent was represented by Ms Kristina Mihalic, a solicitor from the firm HWL Ebsworth Lawyers.

3. The applicant provided oral evidence and was cross-examined by Ms Mihalic. Having listened to his evidence, I was satisfied that there were no special circumstances such that his fee debt should be remitted. I therefore affirmed the reviewable decision.

4. On 12 October 2022, the Respondent requested written reasons for the decision.

   RELEVANT STATUTORY PROVISIONS

5. Subsection 137-5(1) of the Act, provides that a HECS-HELP debt is incurred if the Commonwealth makes a loan to a person and uses the loan to make a payment in discharge of the person's liability to pay his or her student contribution amount for a unit of study. The HECS-HELP debt is taken to have been incurred by a person immediately after the census date for the unit: subsection 137-5(3).

6. A person's HECS-HELP debt in relation to a unit of study is taken to be remitted if, relevantly, section 36-20 applies to the person.

7. Subsection 36-21(1) of the Act relevantly provides that special circumstances apply to a 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.

8. Subsection 36-21(2) provides that

   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.

9. Chapter 3 of the Administration Guidelines 2012 (Cth) (‘Administration Guidelines’) specifies the circumstances in which a higher education provider will be satisfied that special circumstances apply to a person. It states:

   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 that 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.

   3.5.5 The situation referred to in paragraph 3.5.5 must be unusual, uncommon or abnormal.

   3.10 CIRCUMSTANCES THAT DID NOT MAKE FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE

   3.10.1 A 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 did not become apparent until 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

   3.15.1 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.

   FACTS

10. The applicant’s Academic transcript is in the materials before the Tribunal.[2] He performed reasonably well in 2020 (passing 5 out of 6 units) and 2021 (passing 7 out of 10 units) but withdrew from all units in 2022. The present application relates to two units from Term 2, 2021, namely Electromagnetism (PHYS2114) and Machine Learning and Data Mining (COMP9417).

    [2] ST2.

11. On 5 October 2021, the Applicant applied to the University for remission of his HECS-HELP debt associated with the two units, and provided the following explanation (reproduced as written).

    I was laid off from my job quite suddenly and this was quite stressful for me as I had never had to experience this before. The timing of this was unfortunate as it happened over the weekend from Friday the 6th of August, just before exam period, and it significantly impacted my ability to perform in the assignment for PHYS2114, as well as it made it very difficult to concentrate and find motivation to study for my final exams for both subjects. I had applied for special consideration, however at the time I did not have an official letter of termination and was unable to be granted special consideration as a result. As I was unable to be granted special consideration this made me even more stressful compounded on my existing stress and made it nearly impossible to study. As I have finally been able to obtain my official letter of termination, I am hoping to gain a more positive outcome through Fee remission.[3]

    [3] T15, 128.

12. The applicant also provided a letter from Mr Andrew Tatrai, Co-Founder of Assess Threat Pty Ltd trading as Vardgoyir.[4] This letter confirms that:

    (a)  on 27 July 2021, the Applicant met with Aaron Tran to discuss his performance;

    (b) on 10 August 2021, the Applicant had a second meeting with Aaron Tran and Nazli Hocaoglu and he was advised that his 'performance had not improved to the level required for the execution of' his role. In this meeting, the Applicant was advised that he was unsuccessful in his probation period, and therefore his employment was terminated effective immediately; and

    (c) the Applicant was paid his accrued entitlements, up to the date of his last employment of 17 August 2021, which was a sum of $1,023.10.

    [4] T15, 129.

    CONSIDERATION

13. Under the relevant legal provisions, the Tribunal must be satisfied that the relevant circumstances relied upon were (a) beyond the person’s control; (b) did not make its full impact on the person until on or after the census date for the unit of study; and (c) made 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.

14. It was apparent during the hearing that the applicant relied heavily on the loss of his job as the relevant circumstance. He referred to the resulting emotional and financial strain.

15. He commenced employment in February 2021 as a junior software developer, adding and updating small features to software. He was on probation for one year but his employment was terminated on 10 August 2021. It was his only job and he did not have any other source of income. His termination came as a surprise because he thought he was doing well in his role.

16. The relevant census date for the units was 27 June 2021. On 10 August 2021, the applicant was advised that his employment was terminated. The Respondent accepted that the decision to terminate his employment was not a matter within his control.[5] Therefore, any impact flowing from that termination would necessarily have occurred after the census date.

    [5] RSFIC [38].

17. As to the nature of the impact, the applicant referred to emotional and financial strain. He provided a letter from Ms Jasmina Dang dated 18 December 2021 which states that she observed that the Applicant's 'self-worth had been severely diminished and that it caused him a lot of self-doubt about his own abilities particularly with engineering. I personally don't think he was in the right frame of mind to effectively study'.[6] According to her letter, Ms Dang is a former President of the UTS Chapter of Engineers without Borders. The applicant said that she was an engineering student at the University of Technology, Sydney.

    [6] T19, 137.

18. The applicant did not provide any medical evidence in support of his application as to the impact upon him of the loss of employment. Nor was the Tribunal provided with details relating to his financial circumstances, although I accept that the loss of his employment was the source of anxiety and strain, and to some, extent, a loss of self-confidence. As noted above, his termination came as a considerable surprise, because he thought he was doing well in the role.

19. He stated that he experienced some distress at the end of 2020 with the passing of a family member on the day of an exam. He said that this communication was in respect of a similar request for fee remission. He did not have a history of mental illness.

20. He told the Tribunal that he had a bad reaction to his second COVID vaccine on 3 August 2021, but did not put this in his application because he did not think it relevant. He said that he was bedridden for a couple of days, did not see a doctor, and made a full recovery.

21. The applicant conceded that he had continued with his university studies even after his employment was terminated. This was so for both Electromagnetism,[7] and Machine Learning and Data Mining.[8] He logged into the Moodle Portal on a daily basis. He said that he was looking through and trying to understand past papers, and did so in the lead up to the examinations. He was actively involved with the units, looking at past papers, and various forums.

    [7] T12, 61.

    [8] T13 84, 99.

22. The third unit he attempted in semester 2 was Computer System Fundamentals. He sat and passed the examination on 13 August, receiving 62% for the subject overall. He said it did not involve much mental energy or preparation because he was repeating the unit.

23. I note that after failing the two units in term 2 of 2021, he was able to pass two out of three units in Term 3 (receiving a Pass and a Distinction). He was also able to take an additional unit over the summer semester, for which he received a Credit.[9]

    [9] ST2, 4.

24. It can safely be inferred that any impact flowing from his job loss in the form of loss of confidence was short lived.

25. Even assuming that the impact of the loss of his job was not fully felt until after the census date, the Tribunal must determine whether the loss of his job made it ‘impracticable’ for him to complete the requirements for the units.

26. As I noted in Dafalla and Secretary, Department of Education, Skills and Employment [2021] AATA 3703, previous decisions of the Tribunal have placed a high threshold test in relation to impracticality. I summarised two relevant decisions as follows:

    41.The Respondent referred the Tribunal to Ullah and Secretary, Department of Education and Training [2018] AATA 2159, where the Tribunal considered whether an applicant's circumstances, namely the ill-health of his wife and newborn daughter, and the need to return to a remote part of Pakistan to obtain family support and assistance for his wife and daughter, constituted special circumstances. On the question [of] whether these circumstances made it impracticable for the Applicant to complete his study requirements, the Tribunal stated, at [36]:

    In my view none of the matters canvassed made it impracticable for Mr Ullah to continue his studies. Mr Ullah's problems with his studies certainly made it more difficult for him to succeed, but they did not make it impracticable to continue, and he acknowledged during the hearing that although internet access in his village was limited, it was not so limited as to make it impossible for him to continue his studies. His loss of employment when he left Pakistan no doubt reduced his income, but did not prevent him from studying. His wife's health, as noted above, did not, on the evidence available to me, change significantly after the census date and so there is no evidence that it had an impact on his ability to study.

    42.I was also referred to Georgiou and Secretary, Department of Education and Training [2019] AATA 170, where the Tribunal concluded, at [20]:

    I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. However, while the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of the Units, it is insufficient to establish that the circumstances were such that it was impracticable for this to be done.

    43. I consider that her circumstances were not as difficult as those described in these cases, where the Tribunal found that it was not impracticable to complete the course requirements.

27. In this case the evidence is that the applicant continued to actively prepare for his examinations in the two units in respect of which he seeks fee remission, and while it may be that his study preparation was disrupted by the loss of his job, it cannot be said that it was impracticable for him to continue with his studies. Indeed, he continued to do so.

28. The circumstances raised by the applicant fall well short of establishing that it was impracticable, by reason of the circumstances relied upon, to complete the requirements for the units.

29. I therefore affirm the decision under review.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 9 November 2022

Date of hearing:	7 October 2022
Applicant:	Self-represented
Solicitors for the Respondent:	Kristina Mihalic, HWL Ebsworth Lawyers