Massey and Secretary, Department of Education Science and Training
[2005] AATA 581
•26 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 581
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1597
GENERAL ADMINISTRATION DIVISION ) Re SAMUEL MASSEY Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION SCIENCE AND TRAINING
Respondent
WRITTEN REASONS FOR ORAL DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date 26 May 2005
Place Sydney
Decision The decision under review is varied. Substituted for that decision is the decision that the application for remission of the HECS debt for second semester 2001 and first and second semester 2002 is not approved.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
DEBT – Higher Education Contribution Scheme debt – jurisdiction of the tribunal - remission of debt – time limits to remit the debt –– special circumstances – decision varied
LEGISLATION
Higher Education Funding Act 1988 sections 160L and 160M
WRITTEN REASONS
1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly Introduction
1. The Applicant, Mr Samuel Massey, (“Samuel”), was a student at the University of Newcastle during the second semester 2001, first and second semesters 2002 and first semester 2003. In April 2003 he was diagnosed as having schizophrenia, having been psychotic for the past 12 months. [Dr Anthony Wall T10, page 14]. He had chosen to defer payment of his Higher Education Contribution Scheme (“HECS”) contribution when he commenced his studies and therefore had incurred a debt. A successful application was made in July 2003 for the remission of his HECS debt for the first semester 2003 [Exhibit A1].
2. The subject of this proceeding is Samuel's request for the remission of the HECS debts for the second semester 2001 and the first and second semesters 2002 which was dated 30 March 2004 (T2). Mr Vincent Massey, (“Mr Massey”), Samuel's father, appeared for him at the hearing. Samuel did not attend. Mr Massey's statement became Exhibit A2. The reply from the respondent department, the Department of Education Science and Training, (“DEST”), was dated 25 August 2004 (T5). Having acknowledged receiving the application on 25 June 2004 the letter stated:
Unfortunately the secretary is unable to consider your application for the second semester 2001 and first and second semester 2002 since you are outside the time limit for applying.
3. The letter explained what the time limits were, how they had been exceeded and that Samuel had signed a declaration that he had read a booklet which set them out. It concluded:
The secretary is bound by the legislation and is unable to consider applications outside these arrangements. I am sorry I am unable to assist you further.
4. There was no mention of any right of review. Samuel sent a letter dated 21 September 2004 restating his position, T6.
He concluded:
I am now appealing to you as the Secretary of the Department to take a closer and more considered and compassionate look at my former circumstances and give further consideration to my original application.
5. The decision relied upon as ground in the right of appeal to this Tribunal is the reply from DEST dated 18 October 2004, T7. It advised Samuel that:
Your application is unable to be considered since it was made outside the time limits for applying for the removal of a HECS debt in special circumstances. Since these time limits are specified in the Higher Education Funding Act 1988 the Secretary has no discretion to consider your application and there are no other avenues of appeal.
6. The letter went on to suggest that he may wish to apply to the Commonwealth Ombudsman or this Tribunal.
Issues
7. The issues in this proceeding are:
(1) Whether there was a decision which enlivened the jurisdiction of the tribunal.
(2) If there was such a decision was it the correct and/or preferable decision.
The Relevant Legislation
8. It is necessary to read certain provisions of the Higher Education Funding Act 1988, ("The Act"). Section 106L provides:
Power of Secretary to remit debt in special circumstances
(1)The Secretary may in writing remit the whole or part of a person's HECS semester debt or appealed 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…; 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 in the person's course of study for the semester. (see subsection (3B))
….
9. Subsection (3B) provides:
For the purposes of this section, a person's withdrawal day, in relation to a unit in a course of study for a semester or a unit of study, for a study period is:
(a) If the person:
(i) has incurred a semester debt for the course of study for the semester; and
(ii) withdraws his or her enrolment in respect of the semester for the unit of
study; and
(iii) the institution at which the person was enrolled gives notice to the person that the withdrawal has taken effect;
the day specified by the institution in the notice as the day the withdrawal takes effect, or
(b) if:
(i) the person has incurred a semester debt for the course of study for the
semester; and
(ii) paragraph (a) does not apply to the person; and
(iii) the person does not complete the course requirements for the course of
study for the semester during the semester or during the year in which the
semester occurred;
the last day of the semester; or …
10. Section 106M:
Reconsideration of decision and appeal to the Administrative Appeals Tribunal:
(1) If:
(a) a person has applied under section 106L for remission of the whole or part of a semester debt; and
(b) the Secretary notifies the person that he or she has decided not to remit the debt or not to remit as much of the debt as a person ought to have remitted;
the person may apply to the secretary for a reconsideration of the decision.
11. Section 160M, subsection (3):
On receiving application, the Secretary must, as soon as practicable:
(a) consider the application and:
(i) confirm the original decision; or
(ii) vary the original decision; or
(iii) revoke the original decision and substitute another decision; and
(b) notify the applicant of the decision on the reconsideration.
12. Section 160M, subsection (6):
(6) Application may be made to the Administrative Appeals Tribunal for a review of a decision of the Secretary under subsection (3).
Was there a decision which enlivened the jurisdiction of the Tribunal?
13. Ms Gazi, appearing for DEST contended that the Tribunal has no jurisdiction in this matter because no decision had been made pursuant to subsection 106M(1) and no reviewable decision had been made under subsection 106M(3). She argued that the response to Samuel on 25 August 2004 did not represent an exercise of the Secretary's power under section 106L of the Act. It simply informed him that the Secretary was unable to consider his application as it was received outside the time limit. Similarly, the Secretary's response to Samuel on 18 October 2004 is also not an exercise of the secretary's power under section 106L or 106M.
14. Mr Massey did not address this issue. In essence, I understood Ms Gazi's arguments to be that unless all criteria are satisfied, the discretion conferred by section 106L is not enlivened and therefore there is no decision. That is, if all the criteria are satisfied the Secretary then can exercise the discretion to remit or not to remit the debt. The result is relevantly a decision. In my view that is not a correct interpretation of the provision or of the decision that was made in August 2004. The provision is beneficial in nature. To interpret it as Ms Gazi argues it should be, would mean that once a judgment, to use a neutral term, was made that one of the criteria was not met, for example the time limit, there is no possibility of a reconsideration or review of that judgment.
15. In my opinion that does not accord with the purpose of the provision which is to provide a relief from debt in special circumstances. In this case the decision was made as notified on 25 August 2004 not to exercise the power conferred by the section. There being a decision, the response dated 18 October 2004 to Samuel's further request on 21 September 2004 was a decision on the reconsideration within the meaning of section 106M(3) and (6). For those reasons I find this Tribunal has jurisdiction.
Was the decision the correct and preferable decision?
16. Having found that the Tribunal has jurisdiction it is necessary to consider whether the decision refusing to remit the applicant's debt is the correct or preferable decision. Section 106L(1)(c) of the Act requires:
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 in the person’s course of study for the semester.
17. I accept that each subject Samuel included in his application is relevantly a unit. The question is, what is the withdrawal day in respect of each semester as defined in subsection 106L(3B) of the Act? In order to address that issue it is necessary to refer to other evidence.
18. On 3 July 2003 Samuel applied to the University of Newcastle to request that the subjects for 2001 and 2002 that received an FF be changed to be recorded as WW. I understand FF to be an abbreviation of fail and WW to be an abbreviation of withdrawal without academic penalty. The University notified its approval on 21 July 2003. Both documents are found in Exhibit A1.
19. There are two documents that reflect the university's understanding of the withdrawal date.
20. The first is T12 (pages 20 and 21) which is Part B of the application for remission of HECS filled in by the institution. It shows the withdrawal date for each unit in the second semester 2001 to be 2 November 2001. The withdrawal date shown for the first and second semester 2002 is 14 June 2002 and 8 November 2002 respectively. In each case the end of semester date also completed by the university is the same as the withdrawal date for that semester.
21. The second document, Exhibit R1 is an email of 10 February 2005 from Mr Graham Campbell, the university's manager, student financials to an officer in DEST. .It confirms the withdrawal dates to be as shown in T12, pages 20 and 21 and states that:
Samuel did not apply to withdraw from any subject during any of the semesters and was consequently awarded a ‘Fail’ grade for those subjects in each of the semesters in accordance with University policy. Samuel, however, did subsequently appeal the Faculty of Science and IT in July 2003 for all of the Fail grades to be changed to W, which means a withdrawal without academic penalty but the HECS liability remains.. This application was approved by the Faculty and his Student System record adjusted on 11 July 2003 for semester two, 2001 and semester one, 2002. The semester two 2002 record was adjusted on 14 July 2003.
22. Mr Campbell also referred to Samuel’s seeking advice on 30 March 2004 about applying for remission of HECS debt for 2001 and 2002, being given the application form, returning it for completion and commented that:
Student Financials file notes record that Samuel was advised that he had exceeded the allowable time limits for appealing.
23. Mr Massey argued that section 106L(3B)(a) applies in this case and that the withdrawal day in relation to each of the three semesters is the date of the letter notifying Samuel that his application to the university to have WW substituted for FF had been approved, that is, 21 July 2003.
24. Ms Gazi for DEST contended that subsection 106L(3B)(b) applies, that is, Samuel incurred a HECS debt for each of the semesters being considered (s.106L(3B)(b)(i)) and did not withdraw his enrolment (s.106L(3B)(b)(ii)) and did not complete his course requirements for the course of study during each semester (s.106L(3B)(b)(ii)). Therefore, pursuant to that section his withdrawal days were the last days of each semester, that is 2 November 2001, 14 June 2002 and 8 November 2004. It followed that Samuel had to apply for remission of his HECS debts within a 12 month period of these dates, that is, 2 November 2002 for first semester 2001, 14 June 2003 for first semester 2002 and 8 November 2003 for second semester 2002. He did not make the application until March 2004 and, accordingly, was outside the time limit.
25. There was some argument by the parties whether or not Samuel would have been aware of the time limits that apply in relation to remission of HECS debt. It is unnecessary to consider those arguments because the legislation prescribes a time limit without reference to the person's knowledge of its existence and there is no provision that confers a power on the secretary or any other person or body to remit the debt outside the time limit. I accept Ms Gazi's submission, Samuel's circumstances did not fall within section 106L(3B)(a) because he did not withdraw from his enrolment in respect of any of the semesters under consideration. He was enrolled throughout the semester.
26. In July 2003 he applied for an alteration to his academic record to have failures altered to withdraw without academic penalty which would have assisted his continuing his studies in the future. That is not what is meant by section 106L(3B)(a)(ii). I find that his circumstances fall within section 106L(3B)(b). In filling out Part B of the application form, the University of Newcastle completed the last day of the semester as a withdrawal day which is consistent with section 106L(3B)(b)(iii).
27. I inferred that this was because Samuel had not completed the course requirements for the course of study for each semester as set out in that provision. It follows that the withdrawal day was the last day of the semester as set out above. Section 106L(1)(c) sets a time limit of 12 months from that date. While it may seem harsh there is no discretionary power to alter that time limit.
28. Accordingly I find that Samuel had to apply for remission of his HECS debts within a 12 month period of the withdrawal date in respect of each semester, that is, before 2 November 2002 for first semester 2001, 14 June 1003 for first semester 2002 and 8 November 2003 for the second semester 2002. Unfortunately he did not do so and I have no power to alter that time limit.
Decision
29. Accordingly I vary the decision under review and substitute for it the decision that the application for remission of the HECS debt for second semester 2001 and first and second semester 2002 is not approved.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 25 May 2005
Date of Decision 26 May 2005
Date of Written Reasons for Oral Decision 16 June 2005
Applicant’s Representative Mr Vincent Massey (Father)
Solicitor for the Respondent Australian Government Solicitor
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