Nakhle and Secretary, Department of Education, Skills and Employment
[2021] AATA 4763
•21 December 2021
Nakhle and Secretary, Department of Education, Skills and Employment [2021] AATA 4763 (21 December 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6447
Re:Melissa Nakhle
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:21 December 2021
Place:Sydney
The reviewable decision dated 23 September 2020 is affirmed.
................................[sgd]........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for remission – where application for remission was not made until after the end of the application period – whether requirement to make the application before the end of the application period can be waived –– decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Higher Education Support Act 2003 (Cth) ss 36-20, 36-21, 36-22, 36-23, 96-1
CASES
Montenegro v Secretary, Department of Education [2020] FCAFC 210
SECONDARY MATERIALS
Administration Guidelines 2012 (Cth) Chapter 3
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
21 December 2021
Introduction
The Applicant, Ms Nakhle, withdrew from two units of study (the units of study) at the University of South Australia (the University) on 15 October 2018, which was after the “census” date of 5 October 2018. She had a 12-month period until 15 October 2019 within which to submit a fee remission application to avoid being liable for her HECS-HELP debt. The 12-month period may be waived in certain circumstances. In addition, the Applicant has to satisfy a “special circumstances” criterion because she had not submitted the application before the census date.
The Applicant did submit a fee remission application to the University on 29 March 2020 after becoming aware that the Australian Taxation Office had a record of a HECS-HELP debt for the units of study. She claims that she had submitted a fee remission application on 15 October 2018 when she withdrew from the units of study. There is no documentary record of that application in evidence.
On 8 May 2020, the University sent the Applicant an email advising that her application could not be assessed because it was received outside the 12-month timeframe (the primary decision). The email stated:
There is no supporting documentation provided that demonstrates that there were extenuating and exceptional circumstances which prevented you from submitting the application within the required timeframe.
The email included information about how to apply for review of the decision by a review officer.
That email was re-sent to the Applicant on 18 August 2020 to her personal email address because she had lost access to her University email address because she was no longer a student. She applied to have the decision reviewed on 24 August 2020.
On 23 September 2020, the review officer affirmed the primary decision (the reviewable decision). Subsequently, the Applicant applied to this Tribunal for review of that decision
The issues
The issues to be decided are, in order:
(a)Did the Applicant submit a fee remission application on 15 October 2018?
(b)If she did not, does she satisfy the waiver grounds in respect of the 12-month period?
(c)If so, does the Applicant satisfy the special circumstances criteria?
Relevant legislation and guidelines
The relevant legislation is the Higher Education Support Act 2003 (Cth) (the Act). It is unnecessary to set out how a person becomes entitled to an amount of HECS-HELP assistance. It is accepted that the Applicant was so entitled. Consequently, the Commonwealth lends the amount of HECS-HELP assistance and pays the provider (the University) the amount lent in discharge of the student’s liability to pay for the unit.[1]
[1] Section 96-1 of the Act.
Section 36-20 of the Act sets out the criteria that must be satisfied for a provider (relevantly the University) on the Respondent’s behalf, to repay or remit the amount paid for the units which were not completed. The relevant provisions in this case are:
36-20(1)
…
(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 that:
(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 in question; 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.
It is not in dispute, but in any event, I am satisfied that the “census” date was 5 October 2018 and the application period ended on 15 October 2019.[2]
[2] Application period: section 36-22(1) of the Act.
Section 36-23 of the Act provides that:
(1) If:
(a)the application under paragraph 36‑20(1)(e) is made before the end of the application period under section 36‑22; or
(b)the higher education 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;
the provider must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision on the application.
(2) The notice must include a statement of the reasons for the decision.
In the case of Montenegro v Secretary, Department of Education[3], the Full Court of the Federal Court of Australia observed that where a decision is to be made ‘in accordance with’ the Administration Guidelines 2012 (Cth) (the Guidelines), the Guidelines themselves become a 'substitute regime' to which the decision must comply, requiring the content of the Guidelines to be identified by the decision-maker and for the claimed circumstances to be measured against that content.
[3] [2020] FCAFC 210.
Chapter 3 of the Guidelines specifies the matters which must be examined and considered by the Tribunal when assessing whether ‘special circumstances’ apply to an individual for the purposes of section 36-21 of the Act. The purpose is set out in paragraph 3.1.1:
The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:
(a) are beyond the person’s control (paragraph 36-21(1)(a) of the Act);
(b) do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 36-21(1)(b) of the Act); and
(c) 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 (paragraph 36-21(1)(c) of the Act).
Each of the matters enumerated in 3.1.1 is then addressed in detail at paragraphs 3.5, 3.10 and 3.15 respectively.
The evidence
The evidence before the Tribunal included documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), identified as the “T documents” and “Supplementary T documents”, oral evidence from the Applicant and her husband, and his statement dated 2 February 2021.
Chronology
The documentary evidence establishes the following chronology.
On 7 August 2018, the Applicant requested to enrol in the units of study. On 9 August 2018 a “dedicated student adviser” sent a welcome email to the Applicant congratulating her on her enrolment and providing numerous links to information including to the Academic Calendar, with the instruction to check it for dates. The email instructed the Applicant to check her student email regularly.
On 12 September 2018, the Applicant’s general practitioner issued a Medical Certificate certifying that the Applicant was “unfit for work until” 1 September 2018. The doctor had examined the Applicant on 3 September 2018, diagnosed coccyx pain, cervical and thoracic spine pain and bilateral shoulder into arm pain and recommended analgesia, physiotherapy if not improving, and massage.
On 24 September 2018, a physiotherapist completed an Allied health recovery request (AHRR) form seeking payment from an insurer. He stated that on 1 September 2018 the Applicant suffered whiplash associated injuries – cervical spine, thoracic spine and lumbar spine. He had liaised with the medical practitioner and his diagnosis was consistent with the medical practitioner’s diagnosis of the compensable injury. He filled out a table headed “Capacity”. The differences between pre-injury and at initial assessment were that post-injury, the Applicant had pain with all home activities and her running, swimming and gym were limited due to pain. The physiotherapist commenced providing services to the Applicant on 21 September 2018. There had been one session. The AHRR end date was 21 November 2018 with the goal to improve cervical, thoracic and lower back pain. The proposed service was an initial consult and seven once weekly complex treatment sessions of three areas.
The census date for the units of study was 5 October 2018.
On 14 October 2018, the following happened.
The Applicant contacted the University via its Service Web early in the morning:
I have had a series of unfortunate events that have completely derailed my ability to study starting with a serious car accident on 1st sept and then my husband has become unwell and will undergo treatment in hospital next week. I also have a second child sitting HSC. SO I am overloaded on home front and seek to defer my studies till next term as I am already overdue on one assignment and behind in all my reading. Please advise asap. If this is possible and how I go about doing this.
An automated response was sent which included links to answers that “might help you immediately”. They included: “How do I drop (withdraw) a course?” and “Can I get a refund if I withdraw from a course before the census date?”.
A member of the University’s staff called the Applicant and left a voice message. The record states:
Called student left vm – to discuss options. Wanting to advised [sic] amendment to enrolment, extension, and other routes. Also advised possibility of counselling depending on how student is coping.
The Applicant telephoned the University and was given advice, including that:
…she can still withdraw without fail (WWF) … Explained census date has passes [sic], so course fees have been applied, but given the circumstances she may be eligible to apply for Amendment to Enrolment. Student let me know she has barely had time to login to her computer and has no idea how to access the myEnrolment page. Let her know we are more than willing to help her through the process – however she is currently driving in her car and will need to be n [sic] front of her computer and connected to the internet. Student will be home this afternoon, will give us a call back. Will send follow up email in case.
A very sympathetic follow up email was sent which included the following advice:
You can drop your course via your myEnrolment (UniSA’s online enrolment system). You can select your current study period, select the course you want to drop, and then confirm the drop. As discussed, we are more than happy to guide you through this over the phone when you call us back later this morning.
Currently we are past the census date for this term (Friday 5th of October), so your tuition may not be recoverable and you will receive a withdrawal grade if you do proceed with the course drop. Given the circumstances, as discussed, you may be eligible to apply for an Amendment to Enrolment.
This applies when you need to drop a course because of exceptional and extenuating circumstances (such as ill health), you may apply for an Application for Amendment to Enrolment and Fees in Special Circumstances using the form of the same name which can be found under Student Forms.
We look forward to hearing back from you this afternoon.
On 15 October 2018 the Applicant withdrew from the units of study using the online system.
There is a series of records from the University between 16 January 2019 and 29 January 2019 which include emails and records of telephone calls. The Applicant does not dispute that she enrolled in and withdrew from courses in January 2019 before the census date and therefore did not need to lodge an application for remission of fees. Relevantly, on 28 January 2019, the Applicant sent an email stating that she had visited online and filled out a withdrawal as she was still recovering from her car accident and requesting confirmation that her withdrawal had been received. Confirmation of the withdrawal was sent.
On 21 January 2019, the Applicant’s general practitioner wrote to an insurer:
[The Applicant] has had severe neck/cervical spine and low back/lumbar pain since the MVA of 1st September 2018.
The pain is getting worse with time and despite physiotherapy. She needs to have an MRI scan of her cervical and lumbar spine.
On 23 January 2019, the physiotherapist filled out a second AHHR in respect of the 1 September 2018 injury. The diagnosis was “whiplash associated injuries – cervical spine, thoracic/SIJ/lumbar spine. In the table for “Capacity”, the physiotherapist wrote in relation to work that the Applicant was “full-time parent persistent tightness/discomfort”. In relation to “home” he wrote “independent – pain with home activities” and in relation to community, he wrote “has gradually increased running/gym/swimming as helps pain”. He had provided 11 sessions of care and proposed an end date of 21 February 2019 to improve cervical, thoracic, SIJ/lower back pain with four weekly sessions of complex treatment.
In her Application for Amendment to Enrolment and Fees in Special Circumstances dated 29 March 2020, the Applicant set out her special circumstances:
After the census date I was overwhelmed with recovering from a severe motor vehicle accident on 1/9/2018. This has taken me over 12 months to recover from and I am still left with lasting injuries. Please see Drs letter attached. I am also a mother of 4 children and at the time my husband was suffering depression and anxiety. So I was overloaded and missed the date. Thank you for your consideration to this matter.
I infer that the Applicant is referring to the letter from her general practitioner dated 21 January 2019.
As set out in the introduction, the primary decision was emailed to the Applicant on 8 May 2020 and resent on 18 August 2020. On 20 August 2020, the Applicant spoke to a staff member of the University who recorded:
Spoke to student she was distressed about email and I explained that we needed to know why she was unable to apply within 12 months. She was going through rehab after accident and was not able or in the right frame of mind due to stress after accident. She will submit further docs and appeal.
On 24 August 2020 the Applicant sent the following email to the University:
I wish to appeal the decision as you will notice from the documents I submitted and more attached to this email. For over 6 months post my serious car accident 1/9/201 [sic], I was in with my youngest child I was in rehabilitation. And I was focused on that and recovering, to the best of my knowledge I had not realised the time had lapsed on my course..Due to extenuating circumstances and compassionate grounds and my physical heath and recovery request an appeal and re-consideration. I have attached private and confidential files to show you some of the therapy I was undergoing for more than 6 months.
In the Application made to the Tribunal on 16 October 2020, the Applicant claimed the reviewable decision was wrong because:
I strongly believe the decision is wrong due to the fact that I notified the university as soon as I became aware that I no longer was able to continue with the course. This was explained to the university’s student adviser over the phone in September 2018 after I was involved in a major car accident which resulted in both myself and my youngest son admitted to hospital. And then again in an email to the university on 14/10/18 after receiving a phone call from the student advisor asking me to putting [sic] in writing. Due to the difficult circumstances I went through around that time, I did not follow up on the matter until July 2020 when I found out from the Australian Taxation Office that I have a HECS debt. When I emailed the university about the debt, they refused to refund the debt and refused against when I requested a review of the university’s finance officer.
On 16 December 2020, the Department sent an email to the Applicant and Conference Registrar Richardson with the subject Outcome of Investigations by the University as to an fee remission application made by the Applicant during the application period which attached email correspondence between the Applicant and the University on 13 August 2018, 15 October 2018, 16 October 2018, 16 January 2019 and 30 January 2019, summarised earlier in this chronology. The Respondent’s representative detailed the request made to the University seeking evidence that the Applicant had applied for fee remission within the 12 month application period and the University’s response that, according to its records, no application for fee remission was received until 29 March 2020 for the units of study.
The evidence of the Applicant and her husband
The Applicant claimed at the hearing that she undertook two different processes on 15 October 2018. She withdrew from the courses and then clicked on student forms for the Application for Amendment to Enrolment and Fees in Special Circumstances. She vaguely remembered the conversation she had with the University staff member on 14 October 2018 but she had had many calls. She did not take up the offer to be walked through the withdrawal process because she had already done it.
Following is a summary of the balance of the Applicant’s evidence relevant to the issues.
She had not studied in a long time and it was a whole new process for her when she enrolled in August 2018. As a new student, things did not come fast and easy. She needed help after the accident and could not even turn on the computer. Prior to the accident she had been a super fit ultra runner, which means running over 42 kilometres. She would run from 4 am to 6 am. After the accident she did whatever the physiotherapist told her to do. She was quite debilitated. It was painful sitting for long periods at the computer. She missed the first assessment for one of her courses on 1 October 2018. Her husband was in hospital for one or two days and his ill health continued for over a year. He had fortnightly or monthly treatment. His health condition built up over the year with a meltdown at the end of September. The stress in the household increased. Her second child was doing the Higher School Certificate in October as well. She was trying to keep the home as stress free as possible. Running had kept her going. For those reasons, she was unable to devote time to the courses to the best of her ability. Physically and mentally she could not take on one more role.
The Applicant saw her physiotherapist for another few months after his January 2019 AHRR. She was unable to run in a race in May of that year. She did not remember the consultations she had with her general practitioner between 3 September 2018 and 21 January 2019 when the doctor sent the letter to the insurer.
The Applicant did not incur a debt when she again dropped courses in January 2019 because she did so before the census date after being prompted by an email from the University.
She did not refer to having lodged a previous application when she lodged the Application for Amendment to Enrolment and Fees in Special Circumstances dated 29 March 2020 because she was just told to put reasons why she could not do the subjects. She did not refer to that application in her 24 August 2020 application to the University for review of the primary decision because she thought she had to show what happened around the census date and so focussed on the events that occurred around that time.
Mr Nakhle, the Applicant’s husband, referred to a discussion he had with the Applicant after the September 2018 accident about the university workload and the health implications for the Applicant and agreed that it was best for the Applicant and the family that she discontinue her course. He believed that the University wrongly advised the Applicant to apply for an exemption in 2020 because they knew that there was no chance a HECS exemption would be granted and having applied again, the University are using that second application as an excuse to dismiss the application.
Did the Applicant apply for the remission of fees on 15 October 2018?
There is no documentation to support the Applicant’s claim that she applied for remission of fees on 15 October 2018 when she successfully withdrew from the units of study. She was required to fill out a form online. During the conferencing process in the Tribunal, the Respondent made inquiries of the University to obtain records which might assist the Applicant.
The University’s records about the Applicant are comprehensive. I accept the Respondent’s contention that it is inherently improbable that the record was not generated. While the Applicant may now believe that she did fill out the form, I do not accept that her recollection is accurate. Rather, it has evolved in the course of the review process. She made the claim that she had submitted the form for the first time in the Tribunal during the conferencing process. In her application for review to the Tribunal she talked about a telephone conversation with a member of staff of the University on the subject but did not claim to have submitted the necessary form. I did not find her explanations convincing for not having raised the matter before.
The Applicant did not apply for remission of her HECS-HELP debt in relation to the units of study until 29 March 2020. This was outside the application period which ended on 15 October 2019.
Are the grounds for waiver pursuant to subsection 36-20(1)(f)(ii) satisfied?
The Applicant did not contend that it was not possible for her to make the application within the 12 month application period as required by section 36-20(1)(f)(ii) of the Act and the facts do not support such a contention in any event. That she submitted her withdrawal application on 15 October 2018 and then re-enrolled and withdrew in January 2019 show that it was possible for her to have applied for remission of fees before the end of the application period, 15 October 2019. The ground for waiver of the requirement that the application be made before the end of the application period is not made out. The application for review must fail.
It is therefore unnecessary to determine whether the Applicant satisfies the special circumstances criteria under subsection 36-20(1)(d) of the Act.
Decision
The reviewable decision dated 23 September 2020 is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
................................[sgd]........................................
Associate
Dated: 21 December 2021
Date(s) of hearing: 13 May 2021 Date final submissions received: 24 May 2021 Applicant: In person Solicitors for the Respondent: K Cooke, HWL Ebsworth Lawyers
Key Legal Topics
Areas of Law
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Administrative Law
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Employment Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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