Michael and Secretary, Department of Science, Education and Training

[2005] AATA 996

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 996

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/361

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		Brent Michael

Applicant

And Secretary, Department of Science, Education and Training

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date10 October 2005

PlaceSydney

Decision The decision under review is affirmed

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

Ms N Bell
  Senior Member

HIGHER EDUCATION - Higher Education Contribution Scheme – Power of Secretary to Remit Debt in Special Circumstances – Not Found - Circumstances Were Not Found to be Beyond the Applicant’s Control – Decision Under Review Affirmed

Higher Education Funding Act 1988

Secretary’s Guidelines for Special Circumstances for Remission of HECS/OLDPS for Units of Study Commenced on or After 1 January 1988

REASONS FOR DECISION

10 October 2005 Ms N Bell, Senior Member

1.Mr Brent Michael made a written request to the Secretary, Department of Education, Science and Training to have a Higher Education Contribution Scheme (“HECS”) debt adjusted.  The request concerned Information Technology subjects that Mr Michael did not formally withdraw from.  His request was late, because it was made after 31 March 2004, and was refused. Mr Michael contends that his request to have his HECS debt adjusted was late because he received incorrect advice from University of Sydney staff, advice that he says was reasonable for him to rely upon. 

2.Mr Michael applied for entry into the Bachelor of Information Technology degree at the University of Sydney through the Universities Admissions Centre.  He was offered a place in this course and by the end of 2003, he had completed one year of study.  During 2003 he applied, also through the Universities Admissions Centre for a place in a Bachelor of Arts degree, again, at the University of Sydney.  He was successful in being offered a place in this degree and he accepted that offer. 

3.The issue before this tribunal is whether the accrued HECS debt for the Bachelor of Information Technology subjects that Mr Michael enrolled in ought to be removed. 

4.The governing legislation (the Higher Education Funding Act 1988) requires the circumstances in which a late request is made, in this instance Mr Michael’s written request, to be ‘special’ in order for a debt to be remitted or removed, and provides:

Section 106L

(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).

5.      This provision is conjunctive in construction and so failure to meet just one of (a), (b) or (c) above will mean Mr Michael’s circumstances are not ‘special’.   The first matter to address in deciding Mr Michael’s application is whether the situation in which he found himself was beyond his control.  At the hearing, Mr Michael explained why, in his opinion, receiving what he considers to be misleading advice from a member of staff triggered a sequence of events that was beyond his control, satisfying this part of section 106L. 

the circumstances relied upon by mr michael

6.      On Friday, 30 January 2004, Mr Michael attended the University of Sydney Faculty of Arts to enrol in the Bachelor of Arts degree.  At this time Mr Michael was still enrolled in the Bachelor of Information Technology with the same institution and had pre-enrolled in a number of Information Technology subjects.  A few days later, Mr Michael said he attended the Faculty of Arts office once again, but this time to submit his subject choices.  He recalls being served by a young, female member of staff to whom he handed his subject selection form.  She took the form from him and began to enter information into the computer.  Mr Michael said he then told her that he was currently in a Bachelor of Information Technology degree and that, although he had studied a number of computer subjects in high school, he had ‘a change of heart’.  He then said to the staff member that he had completed one year of his Information Technology degree but that he wanted to change. 

7.      Mr Michael recalled saying “So I’m moving from Bachelor of IT to Bachelor of Arts.  I’m not sure what I have to do though, how does the transfer process work?”  Mr Michael said the staff member told him that his name would be removed from the Bachelor of Information Technology degree under the Faculty of Science and added to the Arts Faculty under an Arts degree.  Mr Michael conceded that this staff member did not say she would do that herself but assured him that his name would be removed from the Faculty of Science.  He said that the staff member did not offer him any other information.  Mr Michael stated that upon having this conversation he believed that he had successfully ‘transferred’ from the Bachelor of Information Technology degree to a Bachelor of Arts degree.  He also thought that upon being moved from one degree to the other, any HECS liability for the Bachelor of Information Technology subjects in which he had recently enrolled, would be cancelled.

8.      One day or so after enrolling into Bachelor of Arts subjects he received a letter, dated 30 January 2004, from the University of Sydney confirming his pre-enrolment for the Bachelor of Information Technology course.  Because Mr Michael had, in his mind, just transferred out of this course, he ignored the notice, considering it to be out of date, and discarded it.  On 19 February 2004, Mr Michael formally withdrew from the Bachelor of Arts degree and, he says, changed institution to undertake a Bachelor of Laws.

mr michael’s belief that he had successfully transferred out of the bachelor of information technology degree

9.      Mr Michael’s actual enrolment status, according to the Deputy Director of the University’s Student Centre, Mr Kuhn, as at and from 30 January 2004, was as a student enrolled in both the Bachelor of Information Technology and Bachelor of Arts degrees.  Mr Kuhn, whose evidence was by Affidavit, stated that Mr Michael enrolled into Bachelor of Information Technology subjects between 1 October and 14 November 2003 and this enrolment in subjects was confirmed by the University by way of letter dated 16 January 2004.  Mr Kuhn advised that Mr Michael’s enrolment in the Bachelor of Arts degree was processed as a new enrolment because the applicant had applied through the Universities Admissions Centre. 

10.     Mr Kuhn explained how Mr Michael could be enrolled in two courses at the same institution by stating that in exceptional circumstances:

“…students are permitted to undertake two or more courses simultaneously, where the study load exceeds more than 0.5 Equivalent Full Time Study Units (“EFTSU”) per semester.  At the time the University looked at possible “excess load” enrolments, the applicant’s study load was not over 0.5 EFTSU, as he had already withdrawn from his Arts course.

11.     In this way Mr Michael’s dual enrolment was permitted by the University’s administration.

12.     Mr Michael’s primary contention is that, upon enrolling into Bachelor of Arts subjects, he spoke to the staff member about ‘transferring’ and being told that this would amount to his name being removed from the administration of one faculty within the University and moved to another, he took this to mean that he had successfully withdrawn from the Bachelor of Information Technology course by virtue of his enrolling into the Bachelor of Arts degree.  He said he was of the view that his name had been moved across faculties.

13.     Addressing the meaning of the term ‘transfer’ with regard to University administration, Mr Kuhn stated that in order to transfer, a student has to make a specific request to do so.  He added that the transfer will only occur if it is a “recognised allowable course transfer”.  Once a student’s request has been approved, according to Mr Kuhn, the “units of study from the original course are automatically withdrawn at the point of enrolment in a new course”.  Turning to Mr Michael’s particular circumstances, Mr Kuhn stated:

“Science to Arts in 2004 was not a recognised allowable course transfer.  This is because the Science UAI was 85 and the Arts UAI was 86.5, hence the need to apply through UAC in open competition”

14.     For Mr Michael’s contention that he was misled by staff to succeed, and for me to conclude that, on this basis his circumstances were beyond his control, I must be satisfied that it was reasonable for him to infer what he did from the information provided by a member of University staff.  For these purposes I will consider the other information which Mr Michael had been provided with and had reasonable access to.

15.     Annexed to the statement of Mr Kuhn were copies of information that Mr Michael would have been provided by the University.  This document entitled “The University of Sydney Enrolment 2004” was sent to all enrolling students in September 2003 and at point 1 stated:

“If you decide not to continue with your enrolment in 2004 ADVISE YOUR FACULTY OFFICE IN WRITING NO LATER THAN 31 MARCH 2004…If you are not continuing and you do not advise your faculty in writing, you will incur a financial penalty.”

Then at point 8 the same document states:

“If you are applying to transfer to another award course via UAC or internally, contact your current faculty for advice concerning your enrolment arrangements.”

16.     A further document entitled “Enrolment 2004 What You Need to Know”, which was given to all students enrolling in person at the University stated, on page two bold capital letters:

“IGNORE ANY ADVICE THAT SUGGESTS YOU DON’T HAVE TO FORMALLY WITHDRAW IN WRITING FROM EITHER UNITS OF STUDY OR YOUR COURSE”

17.     In addition to this information Mr Michael was provided with a HECS booklet entitled “HECS Information 2005”.  This booklet is provided to students who elect to defer payment of their subject fees.  Mr Michaels signed a “Payment Options Declaration Form” on 22 January 2003 declaring, among other things, that he had “read the HECS Information booklet”.  The booklet, at page 17 provides:

“It is your responsibility to follow the correct withdrawal procedures of your institution and to ensure the process has been formally completed on or before the census date.  If you formally withdraw on or before the census date you will not owe HECS for that unit for that semester.

To formally withdraw from a unit:

You must withdraw in writing from your unit(s) of study or course(s) on the form required by your institution’s central student administration on or before the census date..”

On page 18 of the same document it states:

“If you accept a place at more than one institution, or more than one place at the same institution, you must withdraw in writing…”

18.In response to the information contained in the HECS Information Booklet and enrolment material, Mr Michael confirmed that he did refer to the booklet, but said that he did not consider the information as being relevant to him because it did not apply to internal course transfers, rather a process of withdrawal.  Mr Michael was of the opinion that he was moving across or transferring courses, not withdrawing from one and entering into another.  He said he understood the booklet to be referring to changing institutions, not moving around within one institution.

19.As previously stated, Mr Michael formally withdrew from the Bachelor of Arts course at the University of Sydney in February 2004 to study a different course at another institution.  Mr Michael became aware of his continued enrolment in the Bachelor of Information Technology only when he received a 2004 Financial statement dated 21 April 2004.  Mr Michael said his mother made inquiries with the University on his behalf and was told to request, in writing, for the HECS debt for the Information Technology subjects to be remitted.  On 4 June 2004, the University wrote to Mr Michael advising that the debt amount could not be adjusted as the enrolment for these subjects could not be withdrawn, due to the lateness of the request.

were the circumstances within which mr michael found himself beyond his control?

20.Mr Michael relies on a combination of the inferences he drew from his conversation with a staff member at the University of Sydney Student Centre, his particular interpretation of the word “transfer”, and his assumption that it was not necessary to attend to correspondence received by him from the University.  He maintains this reliance, even though he read the HECS booklet and had access to enrolment information, which made it clear that he must formally withdraw in writing.  Mr Michael also read a letter from the University, dated 30 January 2004, that confirmed his enrolment in Information Technology subjects. 

21.The circumstances of his failure to formally withdraw from the Bachelor of Information Technology course within the specified time were not beyond his control.  He was not prevented from doing so by any person or event and there was ample accessible information in the documents described above to provide him with an understanding of the requirement for formal withdrawal in writing.  The reliance Mr Michael placed on the information given to him by a staff member and his interpretation of the information were within his control.

22.It follows that, because Mr Michael’s circumstances were not beyond his control, his circumstances are not special and so his debt may not be remitted.

decision

23.The decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ...........[Linda Blue].........................................
  Associate

Date of Hearing  5 August 2005
Date of Decision  10 October 2005 
Solicitor for the Respondent     Australian Government Solicitor