Nacol and Secretary, Department of Education, Skills and Employment
[2022] AATA 1033
•27 April 2022
Nacol and Secretary, Department of Education, Skills and Employment [2022] AATA 1033 (27 April 2022)
Division:GENERAL DIVISION
File Number(s): 2021/0660
Re:Eelyana Nacol
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:27 April 2022
Place:Sydney
The decision under review is affirmed.
....................................[sgd]....................................
Chris Puplick AM, Senior Member
CATCHWORDS
HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-credit – special circumstances – physical illness – whether applicant’s circumstances were beyond her control – whether applicant’s circumstances made their full impact on or after the census date – whether applicant’s circumstances made it impracticable for unit requirements to be met – Tribunal does not find special circumstances – decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 104-25 and 104-30
Higher Education Support (Administration) Guidelines 2022 (Cth)
CASES
Brown and Secretary, Department of Education and Training [2015] AATA 518
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Knee and Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 392
Montenegro v Secretary, Department of Education [2020] FCAFC 210
Palombo and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 564
Revulge and Secretary, Department of Education [2015] AATA 70
Wallis and Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2013] AATA 256
SECONDARY MATERIALS
Study Assist, Loan repayment: < FOR DECISION
Chris Puplick AM, Senior Member
27 April 2022
THE PROCEEDINGS
Ms Eelyana Nacol (the Applicant) is seeking re-credit of a certain portion of her FEE-HELP balance in relation to two courses of study for which she was enrolled in 2020.
The claim is made pursuant to subsection 104-25(1) of the Higher Education Support Act 2003 (Cth) (the Act) and must be assessed in accordance with the requirements of the Higher Education Support (Administration) Guidelines 2022 (Cth) (Administration Guidelines or the Guidelines) made thereunder.[1]
[1] Montenegro v Secretary, Department of Education [2020] FCAFC 210.
The Applicant was a student at UTS Insearch (now known as University of Technology College) (hereafter UTS).
The Applicant made an initial application for re-credit in relation to three courses of study but in due course abandoned reference to one of those,[2] leaving the claim in relation to two courses undertaken in Semester 1, 2020:
·BEC0001 Economics for Business, and
·BACC001 Accounting for Business.
[2] Course BABC001 Academic and Busines Communication, which the Applicant completed and passed in Semester 1, 2020; Tribunal documents (T-documents) at 81. FEE-HELP re-credits do not have be given for any course actually completed pursuant to the Higher Education Support Act 2003 (Cth) (Act) s 104-25(1)(b).
Once a student is enrolled in a course of study, each course has an established “census date” which is the last day upon which a student may submit a request for FEE-HELP loan or else withdraw from that course of study without incurring a debt for that unit.
In relation to the first semester 2020 (beginning in March), that census date was 9 April 2020.[3]
[3] T-documents at 127.
The Applicant lodged her claim for re-credit on 19 October 2020,[4] and this application was rejected by UTS on 26 October 2020. The Applicant sought an internal review of this decision on 31 October 2020 however UTS confirmed its decision on 3 November 2020.
[4] Ibid at 70-71.
Under the provisions of subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) the Applicant had a period of 28 days in which to lodge an appeal in this Tribunal against that final decision.
However, it was not until 8 February 2021 that the Applicant lodged such an appeal which was well outside the statutory requirements. Under subsection 29(7) of the AAT Act an extension of time may be granted to allow late lodgement of claims and the Applicant’s application for an extension of time was granted on the basis that the Secretary, Department of Education, Skills and Employment (the Respondent) did not oppose such a course of action.[5]
[5] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [2.9].
The matter was set for hearing before the Tribunal on 25 January 2022, but at the request of the Applicant (due to her ill-health) was vacated and relisted on 29 March 2022 and then conducted by use of the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols.
The Applicant found it particularly difficult to cope with the stress of the hearing and was unable to complete her closing submissions in a manner which she felt put her case in its best light. As a result, after the hearing she requested the opportunity to make her closing submissions in writing. She was granted permission to do so by Friday 1 April 2022 (which she did) with the Respondent being able to comment on her submissions by 6 April 2022 (which it did). The Tribunal is grateful to both parties for these further submissions.
BASIS OF THE CLAIM
The failure of the Applicant to lodge her claim for re-credit by the census date means that she can only succeed if she is able to demonstrate that there are “special circumstances” which apply in her case. Fortunately, in contradistinction to other many other pieces of legislation, the term “special circumstances” is defined in the Act. The relevant legislative provisions in the Act are as follows:
104-25 Main case of re-crediting a person’s HELP balance in relation to FEE-HELP assistance
(1) A higher education provider must, on the * Secretary's behalf, re-credit a person's * HELP balance with an amount equal to the amounts of * FEE-HELP assistance that the person received for a unit of study if:
…
(c) the provider is satisfied that special circumstances apply to the person (see section 104-30); and
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.
Note: The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.
(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.
It must be noted that subsection 104-30(2) requires determinations to be made in accordance with tests and requirements set out in the Administration Guidelines.
Between the time of the original application and the first scheduled hearing of this matter and the date of this hearing the Administration Guidelines were changed. As of 22 March 2022, the relevant instrument is the Higher Education Support (Administration) Guidelines 2022 (Cth). “Special circumstances” are dealt with in Part 3 thereof as follows:
12 Circumstances beyond a person’s control
(1) For the purposes of paragraphs 36-13(3)(a) and 36-21(1)(a) of the Act, a higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which the provider reasonably considers is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
(2) The situation referred to in subsection (1) must be unusual, uncommon or abnormal.
Note : Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
13 Circumstances that did not make their full impact until on or after the census date
(1) For the purposes of paragraphs 36-13(3)(b) and 36-21(1)(b) of the Act, 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;
(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.
Note : Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
14 Circumstances that make it impracticable for the person to complete the requirements
(1) For the purposes of paragraphs 36-13(3)(c) and 36-21(1)(c) of the Act, 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 if the person undertook, or was to undertake, the unit in the following kinds of circumstances:
(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;
(b) family or 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;
(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.
(2) The requirements for a unit of study referred to in subsection (1) are that the person:
(a) undertakes the necessary private study required, or attends sufficient lectures or tutorials or meets other compulsory attendance requirements in order to meet their compulsory course requirements;
(b) completes the required assessable work;
(c) sits the required examinations; or
(d) completes any other course requirements.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
APPLICANT’S CLAIM
The Applicant’s failure to complete the examination (and therefore the courses) in the two identified subjects resulted in her being accorded a “fail” grade in each.[6]
[6] T-documents at 74.
The Applicant asserts that she was unable to complete the relevant courses of study and undertake her final examinations as a result of her ill-health.
The relevant examinations were scheduled for 2 and 3 June 2020.[7]
[7] Respondent’s SFIC at [5.2(a)].
The Applicant states:
“UTS- college decision is wrong firstly my circumstance was beyond my control and the college made it impractical for me to complete the requirements for that semester of study. Before and during the exam period as I was studying so hard to pass my exams I was so exhausted to the point where I can't get out of bed, when I went to my doctor she said that I suffer from anaemia and my B12 levels were so low and bad that why I was so exhausted and unable to get out bed, she said that I had to get blood infusions and b12 but I said no became my exam was the next day however I got more sick so I called the coordinator I think his name was vin and he said to get my infusions and to get rest and when I can ill submit my exams, it took few days for me to get better and get my head right but no, they went ahead with failing me before I had the chance to submit my certificates and submit my exams! I just don't get it, how can I even go scam my certificate search their emails and contact them if I was dizzy all the time, headaches all the time and high temperature not to mention the side effects of the infusion!”[8]
[8] T-documents at 5.
Elsewhere, the Applicant states:
“However, not submitting my exam was due to short-term sickness. Before the week of exams, my doctor informed me I suffer from anaemia and very low Vitamin B12. Anaemia was having a significant impact on my physical and mental health. I was suffering from fatigue, shortness of breath, dizziness, chest pain, and severe headaches. As I was preparing for my exams, I was feeling worse. On the second of June, I called the Coordinator of Business and I explained to him the situation as I couldn’t get out of bed; the coordinator assured me it is okay for me to rest and get my infusions done, so I can regain the strength to submit my exams when I’m ready. I informed the special consideration coordinator (Patty Norden) as I was told by the Business coordinator. However, after I got the procedure done, I exhausted because of the side effects of the iron infusions and B12 injection. Some of the side effects were severe headaches, nausea, low blood pressure, high temperature, body rash, and body ache.”[9]
[9] Supplementary T-documents (ST1) at 2.
The Respondent accepts that the Applicant was properly diagnosed as suffering from anaemia and low levels of Vitamin B12, and that she had an infusion injection on 3 June 2020 (the date of a scheduled examination).
The Applicant in her oral evidence clarified and told the Tribunal that she had multiple infusions but relevantly, a B12 infusion on 2 June 2020 and an iron infusion on 3 June 2020.
In its SFIC (at [5.18]) the Respondent states:
“The Respondent accepts that the evidence indicates that the Applicant’s sudden health condition only became readily known after the census date (T1, f11). The Respondent therefore accepts that the Applicant’s health condition did not make its full impact until after the census date for the purpose of s 104-30(1)(b) and Paragraph 3.10.1(c) of the Administration Guidelines.”
The Respondent asserts “no medical evidence has been supplied” in relation to the claims of urticaria[10] (a severe skin rash), although the Applicant subsequently supplied some (undated) photographic evidence of skin rashes.[11]
[10] Respondent’s SFIC at 5.2(b).
[11] Supplementary T-documents (ST2) at 10-13.
On 2 June 2020 (the day of a scheduled examination) the Applicant called the course coordinator for her business course and advised him of her situation, being unable to get out of bed and attend the examination.
There is a lengthy email-trail of correspondence between the Applicant and the supervisors of her two courses in the period between 09:02 am and 10:23 pm on the morning of 2 June 2020, the date of her first scheduled examination. In these the Applicant advises that she is unable to attend for the examination as a result of her sudden onset of ill health.[12]
[12] T-documents at 97-103.
The course coordinator (Mr Vinh Tran) at 10:32 am on 2 June 2020 sent an email to the “AdvisorTeam” in the following terms:
“The above student[13]called me this morning saying she’s having health issues (low ion (sic), vitamin having blood transfusions) and hence cannot do exams today and tomorrow. She already emailed Advisors yesterday and is waiting for further instructions.
I’ve asked her to take care of her health and follow instructions once hearing back from Advisors and wd will organise special exams for her once special consideration is granted.”[14]
[13] Identified, not by name but as “Student #3406762”.
[14] Supplementary T-documents (ST5) at 1.
At 10:50 am on 2 June 2020, the Study Success Adviser (Ms Norden) replied:
“Thanks Vinh. I’ll get in touch with the student.”[15]
[15] Ibid at 3.
On 5 June 2020 at 6:02 pm, another officer (Jase) wrote:
“Hi All
Is there any update on the case? I am about to send the special exam timetable out tonight.”[16]
[16] Ibid at 2.
In the meantime (exact details of date and time are not clear), Ms Norden sent the Applicant the following email:
“Hi Eelyana,
I’m sorry to hear about your situation. I hope you’re feeling better soon. With this email I attach a Special Consideration form. Normally, doctors/surgeons would need to complete Page 4 of the attached form for all subjects, which your subject coordinators will then try to apply the best they can, considering your circumstances but given the current situation, if you are unable to visit a doctors/surgeons you can complete Page 3 of the form, indicating what assessments have been affected, and submit it to me by email. Please take clear pictures of page 3 (that you completed) and 4 (if completed by your doctor) and attach it as response to this email. I suggest you do so as soon as you can in order for us to assist you in the best way possible. Please let me know if I can be of any further help”.[17]
[17] T-documents at 106.
In rejecting the Applicant’s claim for re-crediting, the decision-maker in the internal review process claims:
“You state that you were unwell during the exam period and I can see that there was some discussion regarding your inability to attend examinations due to illness. You were given a Special Consideration form to complete and return with supporting documentation. You failed to return the form with supporting documentation.”[18]
[18] Ibid at 77.
The Applicant explains this failure to submit the necessary completed documentation as follows:
“The consideration form was filled out and signed by my doctor on the third because that’s when I got the infusion. However, because of my nausea and vomiting, I was not in full capacity to go through the process and because the business coordinator assured me that as long as they know that is fine, he also said when I get better I should call him, so we can set a date to submit my exams. After I got better, I opened canvas, and I realised I received a fail for the two units. I was disappointed because I was told everything will be okay, and I will sit my exams again, but I got a fail, and therefore I would have to repeat.”[19]
[19] Supplementary T-documents (ST1) at 2.
The Applicant also claims that she was unaware of the census date and details for withdrawal from courses. She writes:
“I was not informed of the census date or if I could withdraw for that matter and I definitely don’t accept that. I only found out about withdrawing from students who have left.”[20]
“Secondly I didn't know that students could withdraw from the course until after I received a fail as that affected me and I got depressed and started blaming myself for my fail which is so unfair of me to do that to myself when I was severely sick and mainly the staff fault. lets say I was stupid enough not to understand that we could withdraw, why didn't the teachers actually say it in the introduction? I literally had no idea about this until I spoke to a student who has transferred due to how bad her learning experience was.”[21]
[20] T-documents at 65.
[21] Ibid at 71.
The Tribunal does not accept that this constitutes a valid reason for not taking action by the census date. On the contrary, there is ample evidence to show that this Applicant (along with all other enrolled students) was provided with extensive information about course details and requirements, including the relevant census dates for their courses.
This extensive information was contained in various Orientation Week presentations, the attachments to the University’s letter of offer of enrolment,[22] the FEE-HELP Q&A document[23] and the Academic Handbook,[24] all of which the Applicant agreed she had received and read.
[22] T-documents at 27-30. The letter was dated 13 January 2020.
[23] Ibid at 35-37.
[24] Ibid at 165.
One email is particularly specific,[25] stating:
“Dear Student,
Please find attached a copy of your Confirmation of Enrolment.
It gives details of the units in which you have now enrolled, the fees you have paid, their EFTSL and the FEE-HELP debt (including the 25% FEE-HELP loan fee) that will be incurred immediately after the census date.
Should you have any queries regarding this, please contact UTS Insearch Student Centre.
Student Compliance UTS Insearch”.
[25] Ibid at 50.
If the Applicant was genuinely unaware of the requirements related to the census date or withdrawal from courses, this was entirely as a result of her own failure to read properly the formal information provided to her by the College.[26] The Tribunal does not accept that the Applicant’s level of English language comprehension (accepting that English is not her primary language) was so deficient as to render her incapable of reading and understanding this material. Her level of comprehension was sufficient to secure a pass in at least one of her course units.
[26] Details of information provided are given extensively in the Respondent’s SFIC at [5.15].
Equally, the Applicant was advised that she could contact the student services programme if she needed assistance with any of her enrolment or participation issues,[27] and while she availed herself of this service on at least one occasion,[28] she never raised the issue of the census date in this context.
[27] T-documents at 39.
[28] T-documents at 72.
The Applicant has also expressed a more general level of dissatisfaction with the courses in which she was enrolled. She states in various communications with UTS:
“I withdrew from the course for many reasons, mainly because failing me was not fair at all. If I had a date to resit my exam, I would have passed because my marks in the two subjects are good. Failing was unfair, and it affected me as I couldn’t transfer my credits to apply to a different university.”[29]
“I would like to inform you that I'm transferring to UNSW. Firstly because I cannot pay 32 grand just for a year, or the 12,000 for that matter, it is a very expensive course and I also regret the fact that I have listened to other advisors who had given me the hope that I would be able to study law afterward. This course has not benefited me in any way. I have pit so much effort into studying however I don't think I have been given the credits that I think I deserve. So I want to officially withdraw from the course.”[30]
“Secondly, why are we paying that amount when we basically taught ourselves, had only an hour session with the teachers and we have not attended ANY CAMPUS LESSONS, and not to mention, other courses fees were so much cheaper since its online and some of them were government-funded.”[31]
“As you have been informed, I am withdrawing from the course as it is very expensive. Firstly because I cannot pay 32grand just for a year, or the 12,000 for that matter, it is a very expensive course, secondly term one ain't worth the 12,000 for many reasons:
1- everything was online (any online course is less than 3000)!!
2- teachers only spent an hour each week without so we basically taught ourselves everything…”[32]
[29] Supplementary T-Documents (ST1) at 2.
[30] T-documents at 59.
[31] Ibid at 65.
[32] Ibid at 67.
The Tribunal does not need to take into consideration the Applicant’s reasons for wanting to withdraw from her courses. It is sufficient to note that she had the opportunity to do so prior to the census date and prior to the date of her examinations.
SECTION 104-30 REQUIREMENTS
Section 104-30 contains three distinct elements which must be in place for re-crediting to take place. As outlined above, the requirements are that the circumstances:
(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.
Beyond the control
What is taken to be “beyond the control” of an applicant is clearly defined in the Guidelines which must be applied to any application.
In essence they provide that if the circumstances arise from some direct or indirect action or inaction on the part of a person themselves, then they cannot be regarded as circumstances “beyond their control”.
Moreover, those circumstances must be unusual, uncommon or abnormal (pursuant to subsection 12(2)).[33]
[33] It is unclear to the Tribunal why the formulation in subsection 1 does not account for “special” nature of the circumstances and instead requires an additional subsection to do so.
The Tribunal accepts that the Applicant’s situation was “unusual, uncommon or abnormal” in that, although ill-health is not in itself to be so characterised, in this instance the impact on the Applicant, coming on as suddenly as it did and requiring immediate infusions, was out of the ordinary. This was especially the case given that these events coincided exactly with the dates of her examinations.
However, inaction (or failure to take action) on the part of an applicant where they had the opportunity and capacity to take action, must be fatal to any claim.
As the Tribunal put it in Palombo:
That being the case, I do not consider the circumstances in which she found herself to have been “beyond her control” in the sense of constituting a situation which was not due to her “action or inaction, either direct or indirect”, and for which she was not responsible.[34]
[34] Palombo and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 564 at [86]; Knee and Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 392 at [124].
The terms “action or inaction, either direct or indirect” are taken directly from subsection 12(1) of the Guidelines.
There were two actions which the Applicant could have taken which would have yielded different results from those which eventuated. In the first place she could have completed and returned the special consideration form which she had been sent and, secondly, she could have withdrawn from the courses at any time prior to the census date.
Special consideration form
As to the first, the Applicant was sent the special consideration form and was aware from her conversation and correspondence with Mr Tran and Ms Norden that UTS was prepared to allow her to sit a deferred examination. She thus had ample motivation to complete and return the form.
Her own evidence is that “[t]he consideration form was filled out and signed by my doctor” on the date of her infusion injection (3 June 2020).[35] She also took steps to obtain (and subsequently provided) photographs to support her claim of urticaria.[36]
[35] Supplementary T-documents (ST1) at 2; (ST2) at 10.
[36] Ibid at 11-13.
Despite what the Applicant says about her health condition at the time, which the Tribunal accepts was somewhat debilitating, it was plainly not such as to render her completely incapable of action. This is evidenced by the fact that on 3 June 2020 she was able to engage in lengthy email correspondence with various officers at the University and, as she stated in her oral evidence, engage with friends in seeking support.
In Brown, the Tribunal explained:
In our view, it cannot be said in the circumstances described by Ms Brown that it was not possible for her withdrawal application to have been made within the 12 months following the conclusion of the first Trimester of her studies. The word possible is defined in The Shorter Oxford English Dictionary in the following way: 1. That may be (i.e. is capable of being); that may or can exist, be done, or happen; that is in one’s power, that one can do, exert, use, etc. It should be immediately apparent that use of the word possible gives rise to a broad range of circumstances under which some action may be taken. For something not to be possible would require a very serious constraint to be placed on a person’s ability to act, in this case, by completing an application form and sending that form by email, fax or post to MIBT.[37]
[37] Brown and Secretary, Department of Education and Training [2015] AATA 518 at [35].
The Applicant was clearly notified of the date by which the special consideration form needed to be returned which was:
“NO LATER THAN FRIDAY OF THE FINAL EXAM PERIOD IN THAT TEACHING PERIOD.”[38]
[38] T-documents at 108. Bold and capitalised in original.
This date was 9 June 2020[39] and the Applicant had a period of some 5 or 6 business days to submit the completed form.
[39] Ibid at 127; Respondent’s SFIC at [5.12].
In Revulge, the Tribunal stated:
Mr Hewawasam Revulge failed to follow the mandatory procedures for seeking leave of absence. This is the reason for his failure to withdraw his subjects for Semester 1 2013 prior to the census date. It was unfortunate that he waited until the last day to seek leave of absence. Mr Hewawasam Revulge is not an unsophisticated young student who has not had any previous association with universities who would have been unaware of the need to follow procedures.[40]
[40] Revulge and Secretary, Department of Education [2015] AATA 70 at [28].
In a letter dated 13 November 2020, Dr Maya El Azzi states:
“…I can confirm she (the Applicant) had a procedure done at the practice on the 3rd of June. She became unwell and unfit to attend any duties or university studies following the procedure till the 15th of June.”[41]
[41] T-documents at 11.
This is supplemented by a further letter from Dr El Azzi, dated 18 June 2021 stating:
“This is to certify that I have today examined Miss Eelyana Nacol and reporting back to 2020 medical notes I can confirm she had an iron infusion on 3/06/2020.
She subsequently suffered from adverse side effects including bodyache, joint pains, nausea, vomiting, headache and body rash following the procedure making her unfit to attend her studies and assignments from the 3/6/2020 till 15/6/2020.”[42]
[42] Supplementary T-documents (ST1) at 3.
The Applicant’s brother in his Witness Statement, confirmed by his oral evidence to the Tribunal attests:
“- I recall Eelyana calling her coordinator at university to see if it is okay for her to submit the exams on different day. He told her to “just take care of herself and to not worry about anything for now”. Eelyana thanked him and we proceeded to go doctors for her infusions.
- After we got home she did not get better and she stayed in bed for days.
- She asked me if I could help her with some paperwork for university, but I couldn't navigate the websites or how to upload them and at the time she was hardly aware of what she is saying as I think she was very weak. She told me that she will do it later when she is able to sit up and I forgot to ask if she sent them.
- 3 days after her infusion she started having some sort of allergic reaction all over her eyes, face and neck. It was very bad that her vision was blurry and doctors were unable to identify what was causing this allergic reaction, however I do recall that the doctor saying that “It may be her body adjusting”.
- A week after her infusions when she was able to sit up and talk, she was checking her University emails and website and we saw that she was given a fail for two units.”[43]
In its SFIC (at [5.24]) the Respondent states:
“The Applicant contends that her health after the census date made it impracticable for her to complete the course requirements in the period she was undertaking the unit, as she missed the examination for each unit, scheduled for 2 and 3 June 2020. The Applicant provided a medical certificate covering the period from 3 to 15 June 2020, which did not cover the 2 June 2020 exam date. However, the Respondent accepts at face value that the Applicant was also incapacitated on that day, given her email to Ms Norden, on 2 June 2020. “[44]
[43] Witness Statement, Anas Nacol dated 12 December 2021.
[44] Citations omitted.
It follows from that concession that the Respondent accepted that the Applicant was “incapacitated” from 2 June to 15 June 2020. The consideration form had to be completed by 9 June 2020, a date that fell squarely within the period covered by the medical certificate and accepted by the Respondent as a period when the Applicant was “incapacitated”.
This incapacity was beyond her control.
Withdrawal prior to census date
As to the second, the Applicant was in a position to withdraw from the courses with which she was dissatisfied at any time prior to 9 April 2020 (the census date) which was well prior to the onset of her ill-health in June 2020.
It must therefore be concluded that, notwithstanding the medical problems suffered by the Applicant such that she could not sit for her examinations at on their originally scheduled date(s) nor meet the requirements attendant upon the lodgement of the consideration form, she nevertheless had an alternate course of action open to her, unaffected by her medical conditions, which she failed to take.
After the census date
The evidence is clear that the Applicant’s health condition only became apparent on or around 2 June 2020 which was clearly after the census date of 9 April 2020.
Impractability of compliance
The Applicant appears to have either misunderstood or misinterpreted the advice which she was given by Mr Tran and Ms Norden. They clearly advised her that special exams would be arranged, and it is clear from the Exams team’s email dated 5 June 2020 that these would be set at a time to be determined by UTS. The suggestion by the Applicant that the exams would be held “when I’m ready”[45] is not quite what was advised to her and indeed as she herself says, “I should have known better and sent the forms”.[46]
[45] Supplementary T-documents (ST1) at 2.
[46] Ibid.
In her written closing submission, the Applicant writes:
“[The Respondent] implied that Mr Tran’s email to the teachers is evidence of the conversation that happened between me and him on the morning of the second of June 2020. She indicated that his email is proof that he asked me to follow instructions of the consideration advisor. What the email fails to prove is that Mr Tran only asked me to rest and inform Ms Patty of the situation, and ‘then we will work on the special consideration’. Ms Donald implied that it is ‘unclear’ whether I informed Ms Patty or not, however she was not hesitant to direct the Senior member to reject the decision of re-crediting my fees as ‘it was due to my inaction’ to follow instructions. I did inform Ms Patty however she failed to recognise that as ‘action’.”
This point was discussed at length in the Tribunal hearing and was referenced in detail in the post-hearing submissions of both parties.
The Applicant was insistent that she was given advice that the rescheduling of her examinations would be at a time determined by her advice as to her state of health and preparedness to undertake the examinations. This evidence was supported by the Applicant’s brother who claimed to have heard a conversation between the Applicant and Mr Tran to this effect. The Applicant also claimed that she had reported just such an outcome to a friend of hers.
However, this is not what a close reading of the contemporaneous documentary evidence would suggest. This makes it clear that at least three of the Applicant’s relevant course supervisors advised her to make contact with Ms Norden to arrange a substitute examination date.[47] The Applicant must have understood this as she replied to one of her supervisors:
“I will sir, thank you.”[48]
[47] T-documents at 102-103.
[48] Ibid at 103.
However, she did not do so, either at the time nor in the subsequent period until she found out that she had been provided with a “fail” grade for the courses.
The suggestion that UTS officials proposed what amounted to an “open ended” invitation to sit for examinations at an undetermined date, dependent upon how the Applicant “felt” simply does not comport with the responsibilities of the administration to follow the strict procedures which are attendant upon the special consideration provisions governing such matters.
In saying this, the Tribunal in no way implies that the Applicant (or her brother) has been untruthful in their evidence. It accepts that the Applicant acted on what she understood to be the purport of the relevant conversations. However, the Tribunal also believes that she misunderstood what she was told both orally and in writing, and hence failed to act on the advice/instructions given to her.
The Applicant cannot transfer responsibility for not accommodating her requirements onto the College when it was the organisation with responsibility to determine matters such as examination dates. It was not up to them to “chase up” the Applicant, the onus of compliance was hers.[49]
[49] Wallis and Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2013] AATA 256 at [55]-[56].
It was the Applicant’s evidence (supported relevantly by that of her brother) that she received the special considerations form and downloaded it on 2 June 2020. She completed it in her own handwriting but did not send it. Instead, she decided to wait until she had seen her doctor on that same day and have her complete the relevant sections. This was a perfectly rational and appropriate course of action on her part, notwithstanding any suggestion to the contrary from the Respondent.
In the event, she failed or forgot to take the form with her to the doctor. She then sought help from her brother to send a scanned copy of the form back to UTS. However, her brother was unable to interface properly with the Canvas system used by UTS and as a result was unable to send back the form. There was a degree of inconsistency in the brother’s witness statement of 12 December 2021 and his oral testimony as to precisely what it was that his sister asked him to do. However, this is a matter of no moment because, whatever it was, he did not or was unable to do so.
The Respondent challenged these assertions claiming that it was a relatively simple process, even if the Applicant (or her brother) could not scan the document they could have sent a screenshot (photograph) of the document as a simple email attachment back to UTS.
It is not necessary for the Tribunal to determine what the situation was with the Applicant’s brother. Suffice to say that the relevant form was not returned and that the Applicant (who was familiar with the UTS’s communications system) must take responsibility for this. The Tribunal accepts the evidence that she was largely incapacitated for a couple of days after her infusions but not so incapacitated as to be unable to arrange for a relatively simple process such as the electronic return of a form.
As already noted, nor was she, for example, incapable of communicating with her friend about her situation or taking screenshots or videos of her condition which were (according to her oral testimony) created sometime late in the evening of 2 June 2020.[50]
[50] Supplementary T-documents (ST3) at 11; video lodged on 16 April 2021.
The Tribunal accepts that the Applicant’s ill-health rendered her incapable of sitting for her scheduled examinations on 2 and 3 June 2020 and this is supported by the existence of a medical certificate from Dr Maya El Azzi which covered the period 3 to 15 June 2020.[51]
[51] T-documents at 11.
The Tribunal has distinguished something being “difficult” for an applicant and something being “impractical”. In Georgiou the Tribunal said:
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 circumstances were such that it was impractical for this to be done.[52]
[52] Georgiou and Secretary, Department of Education and Training [2019] AATA 170 at [20].
The question arises here not of what might simply have been the case on 2 and 3 June 2020, but what would have been the case after 15 June 2020 when the Applicant’s medical certificate expired.
The evidence is clear that UTS was prepared to facilitate the Applicant sitting for late or deferred examinations although, as noted, it is unclear as to exactly when these might have been scheduled. Had they been scheduled after 15 June 2020 there is no reason to believe that it would have been impractical for the Applicant to comply with the course requirements.
In summarising matters in relation to the requirements of section 104-30 of the Act it must be concluded that:
(a)the totality of the circumstances in question were not beyond the Applicant’s control (pursuant to paragraph 104-30(1)(a));
(b)the circumstances did make their full impact after the census date (pursuant to paragraph 104-30(1)(b)); and
(c)the circumstances were not such as to render it impractical for the Applicant to meet the necessary course requirements (pursuant to paragraph 104-30(1)(c)).
The use of the conjunctive “and” in the clause makes it clear that all three conditions must be satisfied for the Applicant to meet the requirements of her case constituting “special circumstances”.
The Tribunal accepts that the Applicant meets the requirement of paragraph 104-30(1)(b) of the Act but does not meet the requirements of paragraphs 104-30(1)(a) and 104-30(1)(c).
Hence, the Tribunal cannot find that special circumstances pursuant to paragraph 104-25(1)(c) have been established.
This leaves the Applicant in a position where she has a debt to the Commonwealth. This debt was reduced by 25% as a result of the Commonwealth Government’s COVID-19 response package (applying to courses with an enrolled census date between 1 April 2020 and 1 September 2020).[53]
[53] T-documents at 72.
The debt in question stands currently at $12,000.00 but does not become payable until the Applicant meets the income threshold prescribed for the repayment of HECs debts. There is no way of knowing when this might be or what might be the relevant public policies operational at that time regarding HECs debts. The rates as prescribed for the financial years 2021/22 and 2022/23 are $47,014.00 and $48,361.00 respectively and the repayment rate is at 1%.[54]
[54] Study Assist, Loan repayment: <>
The Applicant meets the requirement of paragraph 104-30(1)(b) but does not meet the requirements of paragraphs 104-30(1)(a) and 104-30(1)(c).
DECISION
The decision under review is affirmed.
I certify that the preceding 89 (eighty -nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.....................................[sgd]...................................
Associate
Dated: 27 April 2022
Date(s) of hearing: 29 March 2022 Date final submissions received: 6 April 2022 Applicant: In person Solicitors for the Respondent: Ms M Donald, Sparke Helmore Lawyers
5
7
0