Naraiyanansamy and Department of Education, Training and Youth Affairs - [2001] AATA 46

DECISION AND REASONS FOR DECISION [2001] AATA 46

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/418

GENERAL ADMINISTRATIVE DIVISION       )
           Re      AUDREY NARAIYANANSAMY
  Applicant
           And    SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS
  Respondent

DECISION

Tribunal Ms JA Shead, Member

Date29 January 2001
PlaceSydney

Decision      The decision under review is affirmed.
  [Sgd] J A Shead
   Member
CATCHWORDS
EDUCATION, TRAINING AND YOUTH AFFAIRS – HECS debt – liability after withdrawing from units after the census date – whether special circumstances exist – unexpected wedding of Applicant

Higher Education Funding Act 1988

Beadle v Director General of Social Security (1985) 7 ALD 670
Secretary, Department Education, Training and Youth Affairs v Ellem

REASONS FOR DECISION

Ms JA Shead, Member

Mrs Naraiyanansamy seeks review of a decision of a delegate of the Secretary to the Department of Education, Training and Youth Affairs ("the Respondent") made on 18 February 2000, which affirmed, on internal review, a decision made on 13 January 2000 not to remit her Higher Education Contribution Scheme ("HECS") debt ("the debt") in respect of her enrolment in the units named Human Resources Planning Recruitment & Selection (Unit code 25322), Managing Organizational Change (Unit code 25320) Australian Industrial Relations (unit code 25321) and Human Resources in Organisation (unit code 25221) in the spring/summer term 1999/2000 at Central Queensland University ("the University").
Mrs Naraiyanansamy represented herself at the hearing and the Respondent was represented by Mr G Peek, solicitor, Australian Government Solicitor's office. Mrs Naraiyanansamy told the Tribunal that she was employed as a checkout operator with Big W stores for two years.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") ("the AAT Act"). The following documents were also tendered to the Tribunal:
Exhibit A1 Result Advice 2000 Autumn addressed to Mrs Naraiyanansamy
Exhibit A2 Letter from the University dated 30 November 1999 addressed to Mrs Naraiyanansamy

The Respondent provided the Tribunal with a statement of facts and contentions dated 13 September 2000. The debt was $2,466.00 and Mrs Naraiyanansamy told the Tribunal that she had not paid that debt.
The background to the matter is set out in a statement made on behalf of the Respondent pursuant to section 37 of the AAT Act (T3). Mrs Naraiyanansamy enrolled in the above four unit named subjects for spring/summer Semester 1999/2000 at the University on 26 October 1999. As part of the enrolment process, Mrs Naraiyanansamy completed a Drop/Add form acknowledging her HECS liability if withdrawing from units after the census date. The census date was 19 November 2000. Notification of that date was provided to Mrs Naraiyanansamy through the Drop/Add form and the 1999 Student Enrolment Guide which is provided to all external students. The University's Student Finance Officer, Mr D White, provided copies and extracts of those documents to the Tribunal.
In her application to the Tribunal for review of the delegate's decision, Mrs Naraiyanansamy stated:
"I have evidence that my wedding was a late decision. The preparation only started a week before the expiry date." (T4)
At the commencement of the hearing, Mrs Naraiyanansamy contended that the late change in her circumstances and her confusion about the census date were the grounds relied upon in support of her application.
By way of further background, on 1 December 1999 Mrs Naraiyanansamy had lodged an application for remission of the debt (T5). Her reasons were that she had found it "impossible to cope" due to her "unexpected wedding" on 18 December 1999. To support that application Mrs Naraiyanansamy attached copies of a wedding invitation (T17), certificate of marriage (T18), her husband's passport (T19) and air flight ticket documentation (T20). On 13 January 2000 the delegate made the decision not to remit the debt for the reasons that Mrs Naraiyanansamy's supporting documentation had not demonstrated how her circumstances had affected her inability to study or that due to circumstances beyond her control she had been prevented from withdrawing from her studies before the census date (T8, T9). On 9 February 2000 Mrs Naraiyanansamy lodged a second remission application and stated amongst other things that:

it had been an unexpected decision to get married;
her husband was a foreigner;
her husband had family in Singapore that she had to meet;
that she could not just get married and not worry about his family;
she left for Singapore and after that went on a honeymoon to Bangkok;
she was in the process of moving into a new house with her husband; and
she had 3 semesters to finish her education but without the remission she would not have funds to finish her last semester subjects.

On 18 February 2000 the delegate made a decision not to remit the debt and stated that the:
"…fresh supporting documentation demonstrates that her wedding took place after the census date and that she travelled overseas in late December 1999"

and for reasons that

"the documentation did not conclusively demonstrate that she only became aware of her personal circumstances after the census date, or that due to circumstances beyond her control she was prevented from withdrawing from her studies before the census date …" (T12).

The relevant legislation is provided under the Higher Education Funding Act 1988 ("the Act"). An issue arises before the Tribunal under section 106L, which provides, so far as relevant:
"106L(1) The Secretary may, in writing, remit the whole or part of a person's HEC 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 (see subsection (3)); 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)).
. . .
(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)."

Relevant extracts from the university handbook and enrolment process were before the Tribunal.
Mrs Naraiyanansamy gave evidence that at the beginning of 1999 she had enrolled at the University. After enrolment the University sent the course information and material to her. At the end of 1999, on 26 October 1999, she enrolled in the above four unit named subjects for the spring/summer term and that was the first time she had enrolled over the Christmas/New Year term. About 20 September 1999 she had completed a Drop/Add form to enrol in the units.
Between 10 and 14 November 1999 Mrs Naraiyanansamy's husband proposed marriage to her. Mrs Naraiyanansamy told the Tribunal that she had known her husband, a resident of Malaysia, for about 18 months. He had entered Australia on a student visa. At the time of the proposal Mrs Naraiyanansamy's future mother-in-law was planning to go to work in India and she had expressed a desire that she wanted to see her son married before she left for India. Mrs Naraiyanansamy told the Tribunal they had applied to marry a month before the marriage took place. Asked whether she was doing her studies when she made the application for marriage, Mrs Naraiyanansamy told the Tribunal she had been "trying to juggle everything but I had a lot on my mind." The marriage took place on 18 December 1999. Mrs Naraiyanansamy told the Tribunal:
"I had to arrange my wedding dress, floral arrangements, I got my dress about 14 November although page 12 of the documents says 24 November, that was wrong and in between we were getting rings made."

In response to the Tribunal's question whether Mrs Naraiyanansamy had forgotten about the census date, she said "Oh well yes. I didn't know. I had never dropped out of a course before. I didn't know where to look for it." She acknowledged however that she was aware she had to do something.
Mrs Naraiyanansamy was uncertain about the date she had notified the University she was withdrawing from the subjects. It was observed that in the Application for Remission of HECS/OLOPS (T5), Mrs Naraiyanansamy had written the withdrawal date as "29/11/99". In any event, Mrs Naraiyanansamy conceded that it was after 19 November 1999.
In response to questions from Mr Peek, Mrs Naraiyanansamy agreed that she had never told the original decision maker about visiting her husband's family in Singapore during a "late honeymoon" to Singapore in January 2000. Mrs Naraiyanansamy had discussed with her future husband the impact of the wedding on her studies, telling the Tribunal "I said it was difficult to juggle. He said think about it." Asked whether it was a conscious decision on about 10 or 11 to continue her studies, Mrs Naraiyanansamy responded, "Yes … I wanted to work in that area." She told the Tribunal that if she had wanted to finish her studies that would have been possible. Asked how the marriage plans were beyond her control, Mrs Naraiyanansamy said it was too rushed. Mrs Naraiyanansamy told the Tribunal she could have deferred the honeymoon to finish her courses but that they only had a certain period of time for her husband to have his holidays.
Under further cross-examination, Mrs Naraiyanansamy said that she had telephoned the University and after speaking with a person in administration she "realised it was past the census date". She had telephoned late in November 1999.
The first issue in this application is whether Mrs Naraiyanansamy withdrew from her course by the census date 19 November 1999. That is a question of fact. The Tribunal reviewed the documents, had regard to T5, T6 and T7, the documents provided by the University's Student Finance Officer and the oral evidence of Mrs Naraiyanansamy. The Tribunal is satisfied that Mrs Naraiyanansamy did not. The Tribunal finds that Mrs Naraiyanansamy did not withdraw from the units of her course before the census date.
The second issue is whether Mrs Naraiyanansamy's circumstances amount to special circumstances within the Act. Turning to section 106L of the Act and special circumstances, the Tribunal is satisfied that, although Mrs Naraiyanansamy was rushed at the relevant time as a result of the unexpected marriage, those circumstances, although within her control, remained constant both before and after the census date and are not such that it was beyond her control to advise the University in writing before the census date that she had decided to withdraw from her course. Her evidence points to her as having considered her commitment to her studies and she decided to continue with them. That decision was made at about time of her acceptance of the marriage proposal.
Mrs Naraiyanansamy's submissions outlined in paragraphs 6 & 7 do not amount to "beyond a person's control" within the meaning of the Act. There were no factors relevant to her consideration of the census date.
In the Respondent's statement of facts and contentions, reference is made to Beadle v Director General of Social Security (1985) 7 ALD 670 at 3. Briefly that case decided that special circumstances "must have a particular quality of unusualness that permits them to be described as special". The Tribunal agrees with the contentions of the respondent that having had to give a month and 1 days notice of the intention to marry, Mrs Naraiyanansamy marriage on 18 December 1999 and the subsequent overseas honeymoon at the end of January 2000, do not amount to special circumstances. The Tribunal considered the "rush to marry" and Mrs Naraiyanansamy's circumstances including family pressure, and while unusual they were not so unusual but rather the type of pressure that one might expect in relation to a wedding.
Mrs Naraiyanansamy told the Tribunal that at the relevant time she was focussing on her desire to marry. It seemed to the Tribunal that Mrs Naraiyanansamy had tried in her own words "to juggle everything" and unfortunately for her it was unsuccessful in respect of her studies. Consequently her late withdrawal incurred the debt.
The Tribunal is satisfied that all the circumstances were not such that they were beyond the control of Mrs Naraiyanansamy. It appears the decision to marry was made about a week before the census date but firmed up about 18 November 1999, the day before the census date. It seemed to the Tribunal that Mrs Naraiyanansamy had made a conscious decision to continue her studies but was then unable to cope in all the circumstances. There was no doubt many things occupied Mrs Naraiyanansamy about the time of the census date and which did not make their impact on her until after that date however in the course of life they were little things and were momentary.
In Secretary, Department Education, Training and Youth Affairs v Ellem (2000) 173 ALR 300 Lindgren J said, at paragraph 38:
"A person may choose not to complete a course on account of circumstances as multifarious as human experience allows. Examples are: sudden and unforeseeable family or economic exigencies; a change in professional qualification requirements; a change in the teaching staff of the institution of higher education; a developing appreciation by the person that the course is not well adapted to his or her needs or desires; a developing appreciation by the person that he or she is not well equipped to undertake the course. In some circumstances the voluntary element will be so dominant that it could not reasonably be suggested that special circumstances apply to the person, as where the person simply decides, as a matter of "preference", not to complete the course. In other cases, the pressure of external circumstances on the person may be almost irresistible, such as circumstances associated with a death or terminal illness in the person's family. The point is that there is a continuum on which sets of circumstances can be placed according to the degree to which circumstances within the person's own control, or external circumstances beyond his or her control, are properly to be seen as causative of his or her non-completion of the course requirements, and it is a misconception to think that "special circumstances" cannot apply to the person whenever it can be said that an element of his or her decision-making is involved."
The legislation provides that fees must be paid unless a student has withdrawn by the census date if the debt is not remitted in special circumstances. In this application the decision under review will be affirmed.   This means that the decision is not changed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms JA Shead, Member.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  12 December 2000
Date of Decision  25 January 2001
Solicitor for the Applicant         Self-represented
Solicitor for the Respondent    Mr Greg Peek