Loch and Secretary, Department of Education and Training
[2019] AATA 1101
•3 June 2019
Loch and Secretary, Department of Education and Training [2019] AATA 1101 (3 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5508
2018/5820
Re:Odin Aaron Mason Ploumond Loch
APPLICANT
Secretary, Department of Education and TrainingAnd
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:3 June 2019
Place:Sydney
The decisions under review are affirmed.
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Senior Member A Poljak
CATCHWORDS
HIGHER EDUCATION SUPPORT – HECS-HELP debt – application for remission – special circumstances – whether circumstances beyond applicant’s control – whether circumstances made their full impact on or after the census date – whether impracticable for applicant to complete the unit requirements – Tribunal does not find special circumstances – decision under review affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 36-20, 36-21, 238-10
CASES
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
SECONDARY MATERIALS
Higher Education Support Act 2003 – Administration Guidelines 2012
REASONS FOR DECISION
Senior Member A Poljak
3 June 2019
On 20 October 2017 and 2 December 2017, Mr Loch, the applicant, enrolled in the units of study 48434 - Embedded Software (“Unit 1”) and 35010 - Foundation Mathematics (“Unit 2“), at the University of Technology Sydney (“UTS”). Unit 1 and Unit 2 had an equivalent full-time study load (“EFTSL”) value of 0.125 and a census date of 9 April 2018.
On 22 June 2018, the applicant applied to UTS for the remission of his HECS-HELP debt under section 36-20 of the Higher Education Support Act 2003 (Cth) (“the Act”) in relation to Unit 1. On 31 July 2018, the applicant also applied to UTS for remission of his HECS-HELP debt for Unit 2. On 17 September 2018, UTS notified the applicant of its decision to not re-credit his HECS-HELP debt in relation to Unit 1 and Unit 2. Those decisions were affirmed on 2 October 2018, and are the decisions under review in these proceedings (“the reviewable decision”).
The issue for determination in these proceedings is whether subsection 36-20(1) of the Act applies to the applicant in respect of the units and, more specifically, whether there are “special circumstances” that applied to the applicant. Subsection 36-20(1) of the Act sets out the circumstances in which a higher education provider must, on the respondent’s behalf, determine that section 36-20 applies to a person. Relevantly, paragraphs 36-20(1)(d), (e) and (f) provide:
(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.
Subsections 36-21(1) and (2) of the Act provide:
(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.
Subsection 238-10(1) of the Act provides that the Minister may, by legislative instrument, make Guidelines of various kinds, including the Higher Education Support Act 2003 -Administration Guidelines 2012 (“Administration Guidelines”). Chapter 3 of the Administration Guidelines deals with “special circumstances” as follows:
3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1 A 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.
3.5.5 The 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
3.10.1 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 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
3.15.1 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.
Relevant Conduct and Course Progression at UTS
The applicant’s Academic Record for UTS as at 17 October 2018 (“Academic Record”) shows that he failed Unit 2 in both the first and second semester in 2017. When the applicant enrolled in Unit 2 on 2 December 2017, this was his third attempt to pass the subject. It is plain from the correspondence between the applicant and UTS staff in early 2018 that he was once again having difficulty passing his course work; specifically for Unit 2 but also for Unit 1.
Some relevant aspects of the correspondence are detailed below.
From 6 April 2018, the applicant sent numerous emails to the lecturer of Unit 1 at UTS expressing his displeasure with how his assessment tasks had been marked and raising issues about his lab partner. He also expressed displeasure about the lecturer’s teaching ability and communication skills. The applicant included the correspondence in a formal complaint to the Deputy Head of School (Teaching & Learning) and other UTS staff.
On 8 May 2018, the applicant sent an email to the lecturers of Unit 1 and Unit 2, advising:
“I am repeatabily(sic) getting low marks in all my subjects. Where I know the answers and I know the Theorems.
I am not sleeping at night, I regularily(sic) get less than 5-6 hours of sleep of a night and my wife is pregnent(sic).
I am falling to pieces. I would like to withdraw from this semester.
…”
The Deputy Head of School (Teaching & Learning) responded to the applicant in an email dated 8 May 2018. He advised the applicant to speak to Student Services to explain that he wished to withdraw even though the census date had already passed. Later that evening, the applicant sent an email to his lecturers advising:
“Hello,
I have since seen the Student Services. Who have put me into the Accessibility Service, and Counselling. I have also taken actions to resolve my problems myself. I will continue on as normal at the University and if I fail the semester I will then ask for a Withdrawal with no penalty, after the exams.”
Correspondence between the applicant and various UTS staff demonstrates that he continued to be unhappy with his lecturers. On 16 May 2018, the applicant made a request for his Collaborative Written Assignment (“CWA”) in Unit 2 to be re-marked and also applied for special consideration; his request for special consideration was denied. On 17 May 2018, the lecturer for Unit 2 advised the applicant to visit the Maths and Science Study Center (“MSSC”) to receive feedback on his CWA. The applicant’s emails, particularly those to his lecturer of Unit 2, were aggressive and abusive in tone to the point where the matter was referred to a senior advisor at Student Misconduct and Appeals, Governance Support Unit at UTS and an Incident report was created on 21 May 2018. It appears that the applicant did visit the MSSC to discuss his CWA and in an email dated on 28 May 2018, the following is reported about the applicant:
“he was agitated, tense and visibly upset and very very angry
he said,…
I am not fit to be a marker
I did not understand his work
among other nasty words….
Before I completed my verbal feedback, he left.”
On 10 June 2018, the applicant emailed the lecturer for Unit 2 again contesting his mark for the CWA. It appears that this request was accepted and in an email dated 18 June 2018, the lecturer for Unit 2 confirmed his original mark of 6/15.
The applicant’s Academic Record records that in the 2018 autumn session he received a “Fail” for Unit 2; Unit 1 is recorded as “Withdrawn/Fail”; and he received a “Pass” for unit 48510 - Introduction to Electrical and Electronic Engineering.
Consideration
In the application for remission of his HECS-HELP debt for Unit 1, the applicant specified that his circumstances which amounted to “special circumstances” were: “chronic depression and anxiety; birth of a child which requires constant care and supervision; negative relationship factors such as an imminent divorce - threats from former family members which were reported to the police; my life is horrible. Please swap”. The applicant specified the same circumstances in his application for remission of his HECS-HELP debt for Unit 2, but also added “depressed partner needing care”. In addition to the claims contained in the applications for remission of his HECS-HELP debt, the applicant appears to also contend that he suffers from alcohol abuse; stress as a result of legal proceedings and has suffered a death of a relative on 14 August 2017.
The applicant has provided the following evidence in support of his circumstances:
(a)A medical certificate from Dr Harold Lau, a general practitioner at Earlwood Medical Centre, dated 14 May 2018, which states:
“[The applicant] is suffering anxiousness since his first ever consultation at the practice on 20/09/2017 and he reports that the symptoms have been present for around 12 months. These have impaired his ability to concentrate on his studies and assignments. Please take this into consideration.”
(b)A UTS Professional Practitioner Certificate from Dr Samuel Sidrak, a general practitioner at Earlwood Medical Centre, dated 17 May 2018, providing a prospective diagnosis that the applicant is “moderately affected” by an “anxiety disorder” from 17 May 2018 to 17 November 2018.
(c)A medical certificate from Dr Wicky Wong, a general practitioner at Earlwood Medical Centre, dated 3 August 2018, which states:
“[The applicant] is/was suffering from a medical condition - depression/anxiety/alcohol use. He was first seen at this practice in September 2017. He reports that he has had issues from June 2017 to June 2018 inclusive and it worsened during this time. During this time he also reports of having stresses related to relationship issues (marital stress and death of a family member) as well as having a child.
He is still undergoing treatment currently.”
(d)Copies of Federal Circuit Court Orders made on 16 March 2018 and 14 June 2018 in respect of a mediation between the applicant and another party; and
(e)a copy of a memorial certificate for Heather Shannon dated 14 August 2017.
I’ll first deal with the applicant’s specified circumstance of “chronic depression/anxiety/alcohol abuse”. I accept that the applicant’s condition is beyond his control, but I am not satisfied that it made its full impact on the applicant until on or after the census date for Unit 1 and Unit 2. The available evidence shows that the applicant sought medical consultations in relation to depression, anxiety and alcohol abuse from September 2017; this was prior to the 2018 autumn study period and well before the relevant census date of 9 April 2018. While the medical certificates confirm that the applicant was suffering the effects of these conditions between September 2017 and throughout the autumn study period, the documents are not sufficient to demonstrate that his medical conditions materially worsened or made their full impact on the applicant on or after the relevant census date. Additionally, there is no evidence that the applicant’s diagnosis by the medical practitioners materially changed after the relevant census date.
Having carefully considered all of the available evidence, it is plain that the applicant academically struggled with the requirements of his course at UTS, particularly Unit 1 and Unit 2. This is not confined to the period on or after the census date. The applicant’s Academic Record clearly shows a pattern of the applicant failing Unit 2 (twice in 2017) and this pattern did not change in the 2018 autumn study period. The Academic Record also shows that the applicant failed 48510 - Introduction to Electrical Engineering in the 2017 autumn session. I note that correspondence from the applicant to UTS academic staff during April and May 2018 was often of an aggressive and derogatory tone. Considering the evidence as a whole and in light of the applicant’s Academic Record, it is plain that the applicant was increasingly frustrated about his low grades. The evidence however does not support a finding that this was as a result of circumstances other than his frustration with his academic ability. Emails expressly address concerns with academic staff and their teaching ability and his requests for reconsideration of assessments.
While the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of his study, it is insufficient to establish that the circumstances were such that it was “impracticable” for this to be done; see Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 (3 August 2016). Further, on 10 May 2018, the applicant sent an email in which he said that he had taken action to resolve his problems himself and that he intends to continue with his studies but “… if I fail the semester I will then ask for a Withdrawal with no penalty, after the exams”. This indicates that the applicant was capable of completing the units and only intended to withdraw if he failed.
A number of the applicant’s other claims are unsupported by the available evidence. Namely, the applicant has specified that he received threats from his family members and provided a police incident number, but he has not otherwise provided any evidence or details of such incidents or threats and how the effect of these events changed on or after the census date; the applicant claims that he had difficulties in his relationship and that he was facing “imminent divorce” however, no evidence is provided to demonstrate how this has impacted on the applicant and how the effect of this changed on or after the census date; the applicant claims that his son required “constant care and supervision” however he has not provided evidence or further detail about the level of care he provided or how the effect of this event changed on or after the census date; the applicant has provided a Memorial Certificate for Heather Shannon and I accept that she passed away on 14 August 2017 however, this occurred well before the relevant census date and there is no available evidence showing the effect of her death on the applicant and how the effect of this event changed on or after the census date; the Federal Circuit Court orders provided by the applicant demonstrate nothing other than the fact that proceedings were underway, there is no evidence to show the effect of the court proceedings on the applicant and how the effect of this event changed on or after the census date. There is no available evidence demonstrating the impact that these circumstances had on the applicant’s ability to meet the requirements of Unit 1 and Unit 2.
Decision
For all of the above reasons, I am not satisfied that for Unit 1 and Unit 2 circumstances occurred which were beyond the applicant’s control; which did not make their full impact on the applicant until after on or after the census date; and which made it impracticable for the applicant to complete the requirements of the units, during the period in which the applicant was to undertake the units.
The decisions under review are affirmed.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 3 June 2019
Date of hearing: 21 March 2019 Applicant: Self-represented Solicitors for the Respondent: HWL Ebsworth Lawyers
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