Noble and Secretary, Department of Education, Science and Training

[2006] AATA 392

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 392

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/100

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DAXAMUS ROLEY NOBLE

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal Miss Mary Imlach, Senior Member

Date5 May 2006 

PlaceHobart

Decision The Tribunal affirms the decision of the respondent made 6 May 2005 pursuant to section 106M of the Higher Education Funding Act 1988 not to remove the applicant's Higher Education Contribution Scheme (HECS) debt for one subject in the second semester of 2004.

[Sgd Mary Imlach]

Senior Member

CATCHWORDS

HECS debt - remission of debt - census date - special circumstances

Higher Education Funding Act 1988 Section 106

Beadle v Director-General of Social Security (1985) 7 ALD 670

Shaun Eric Hall v Secretary, Department of Employment, Education, Training and Youth Affairs AAT No 12478

REASONS FOR DECISION

Miss Mary Imlach, Senior Member          

1.      Mr Daxamus Noble commenced study at the University of Tasmania (Unitas) in February 2002 for the degree of Bachelor of Natural Environment and Wilderness Studies.  He applied in January 2004 for leave of absence from Unitas to enrol in a course in the Faculty of Geosciences at the University of Utrecht in the Netherlands.  He registered the subject code KGA 090 International Programme as the course undertaken with Unitas over two semesters.  Mr Noble completed the first semester but did not withdraw from his course at Unitas before the relevant census date, namely 31 August 2004.  He withdrew from the second semester of his course at Utrecht on 6 September 2004, one week after the census date making him liable to pay for the second semester under HECS.  Mr Noble sought remission of the HECS debt incurred for the second semester on the basis that he had found himself in special circumstances.  His request was refused by the department after consideration of the guidelines which list the relevant factors to be considered in the assessment of an application for remission of a debt on the grounds of “special circumstances”.

Issue

2. Did Mr Noble (the applicant) withdraw from the second semester of his course at Unitas in circumstances which were “special circumstances” within the meaning of the Higher Education Funding Act 1988 section 106L(3).

Submissions of the Applicant

3. The applicant who was represented by Ms Clare Henderson argued that as the applicant was not undertaking a course of study within Australia he was subject to different semester dates, different cultural considerations and different pressures in comparison to students studying at a traditional university in Australia. She argued that these circumstances were in fact “unusual” in themselves. She submitted that the objects of the Act are to support a higher education system which is characterised by quality, diversity and equity of access and that to force a HECS debt upon a student on a date that is prior to the commencement date of the actual studies is prejudicial, unfair and inequitable.

4.      Ms Henderson referred the Tribunal to the decision of Beadle and the Director-General of Social Security (1984) 6 ALD 1 in which the Tribunal stated:

“An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.  Whether circumstances answer any of these descriptions must depend upon the context in which they occur.  For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases.  This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special”.

On appeal Beadle v Director-General of Social Security (1985) 7 ALD 670 at 675 the Full Court of the Federal Court said:

“While we would place less emphasis on one dictionary definition of “special” we are in broad agreement with the approach of the Tribunal and are in agreement with its conclusion”.

Ms Henderson argued that in determining whether the applicant’s circumstances are “special” the Tribunal should take a broad approach and should determine the matter on its own material facts.

5.        It was contended on behalf of the applicant that the Tribunal should apply the same reasoning as that used by the Tribunal in the decision of Shaun Eric Hall v Secretary, Department of Employment, Education, Training and Youth Affairs AAT No 12478.  In that case the Tribunal considered whether to remit a HECS debt in period three for the Open Learning Australia (OLA) academic year.  The Tribunal held that much more time is available in the traditional university system compared to the OLA program to allow a student to make an informed decision whether to withdraw from a subject and that ultimately “special circumstances” were associated with the withdrawal and therefore the student was not liable for the study period three debt.

6.        The applicant contended that the same reasoning should be applied to his circumstances in undertaking a course of study in a foreign university at Utrecht and that his circumstances should be considered special so that he is afforded the same quality, diversity and equity of access that other students studying in a traditional university in Australia are given.

7.        It was stated by the applicant that he was afforded no time to make an informed decision.  The course in Utrecht had not started at the census date of 31 August 2004.  He stated further that at 31 August 2004 he did not intend to withdraw from his course of study and that at the census date he was unaware of the full impact of his financial difficulties due to the fact he had been travelling in remote areas of Europe and had no access to his visa statement balance.

Submissions of the Respondent

8. The respondent who was represented by Mr John Shears, contended that in order to establish that ‘”special circumstances” have arisen, it is necessary for the applicant to satisfy the department that all three elements in section 106L(3) paragraphs (a) (b) and (c) exist.

9.        In response to the applicant’s claim that his financial circumstances in Utrecht on the census date of 31 August 2004 were beyond his control, the respondent brought evidence to show that four days before the census date the applicant withdrew $778.00 from his Westpac Savings Account by internet banking.  He would have been able to see at that date that his balance in the account was $600.00.  The respondent contended that on this evidence the applicant must have known the full impact of his financial circumstances.

10.      The respondent argued further that the applicant must have calculated his estimated living expenses before he departed Tasmania to study in the Netherlands.  Being on a tight budget is not an unusual, uncommon or abnormal situation for a student.  The responsibility for his financial situation lay solely with the applicant and the respondent claimed that the situation the applicant found himself in was caused solely by himself.

11.      The respondent also argued that there was no evidence that the applicant’s homesickness worsened dramatically in the week after the census date leading up to the day on which he withdrew from his second semester namely 6 September 2004.  There was evidence by the applicant that he had emailed a friend complaining of homesickness but the email also stated that he had been feeling homesick at an earlier date and the main reason for returning home was the lack of funds.

12.      The respondent also contended that the applicant did not meet the requirements for “special circumstances” as established in the Beadle and Director-General of Social Security (1984) 6 ALD 1 and that the case of Shaun Eric Hall v Secretary, Department of Employment, Education, Training and Youth Affairs (1997) AAT No 12478 could be distinguished from this case as it dealt with a case outside the “traditional university system”.

13.      The respondent contended further that the explanation for the applicant abandoning his overseas study was his inadequate planning, resourcing and preparation rather than “special circumstances” existing in the period between the census date and the date he withdrew from his course one week later.

Consideration of the Law and Findings

14. The relevant legislation is contained in section 106L of the Higher Education Funding Act 1988 (“the Act”) which gives the Secretary of the Department the power to remit the whole or part of a persons HEC semester debt in special circumstances. Subsection 106L(3) of the Act outlines the circumstances which are to be considered as special circumstances. These 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;  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 for which he or she was enrolled for the study period”.

Under subsection 106L(3A) of the Act the Secretary may issue Guidelines outlining in what circumstances the Secretary will be satisfied that the matters in (a) (b) or (c) of section 106L(3) are met. The Guidelines state:

“Each application will be examined and determined on its merits.  The Secretary will consider the person’s claims, together with independent documentary evidence which substantiates these claims.  The Secretary will be satisfied that a person’s circumstances:

(a)are beyond a person’s control if:

a situation occurs which a reasonable person would consider is not due to the      person’s action on inaction, either direct or indirect and for which the person                   is not responsible.  This situation must be unusual, uncommon or abnormal.                 A lack of knowledge or understanding of HECS is not considered to be   beyond a person’s control.

(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 if the person’s circumstances occur;

(i)        before the census date, but worsen after that date, or

(ii)       before the census date, but the full effect or magnitude does not    become apparent until on or after that day, or

(iii)on or after the census date”

15.    The applicant admitted in cross-examination by Mr Shears that he had sent an email to his mother on 6 September 2004 which read as follows:

“Its almost like you can ready my mind when I went to type this message.  Firstly I am home sick secondly my courses here this semester aren’t good, thirdly I’m homesick and finally I wanna come homeeeeeeeeee.  I have had a good think about this, particularly on holidays not just of recent, most of the thinking was done in England when I thought then I didn’t want to be away from home for christmas, didn’t feel right.  I’ve already missed dad’s 60^th which I didn’t like.  I just feel I’ve had enough, I’ve seen lots of things already and want to get back and relax.  The reason I’m mentioning all this is (flight availability pending) I’m planning on coming back toward the end of this month, like I say flight availability pending.  The main reason for this is funds.  If I wait well I might as well stay as I’ll have to pay another rent which would be pointless if I don’t like the classes, which I don’t.  don’t think I’m making a rash decision as I am not, I was already feeling homesick (well once I left you guys so quickly at the station) in England even around Kelra and her family (all’w well with Kelra by the way).  Yes so I’m going to sort out the tickets asap and I’ll let you know more after than,k but till then bye bye’s and I’ll look forward to arguing err I mean seeing you soon).  Please don’t feel I’ve rushed into this I’m just at a point where I’ve had enough and want to GO HOME”.

The email was tendered as an exhibit.  It is clear to the Tribunal from the contents of the email that the applicant had been considering returning home for some time for as he said himself “I have had a good think about this, particularly on holidays not just of recent, most of the thinking was done in England when I thought then I didn’t want to be away from home for Christmas ... I just feel I’ve had enough ... The main reason for this is funds ... Please don’t feel I’ve rushed into this I’m just at the point where I’ve had enough and want to GO HOME”.  The email shows that the applicant had made up his mind prior to the census date that he would be returning to Australia.  The factors, therefore, which brought about his withdrawal from the course, his homesickness and his lack of financial funds were known to him whilst he was on holiday in England, but by his own inaction he did nothing at that time to advise Unitas of his change of plans.  The situation in which the applicant found himself was brought about by his own inaction.  He was responsible for the consequences of his own decision to withdraw from the course.

16.      A lack of knowledge or understanding of HECS is also not considered to be beyond a person’s control.  The applicant signed a HECS Payment Options Declaration form in 2004 in which he stated that he had read the HECS Information Booklet 2004 and that he was aware of his responsibilities.  In signing the Declaration it became incumbent on the applicant to inform himself of the census dates applicable to his period of study.  The HECS Information Booklet 2004 issued to the applicant on his enrolment at Unitas contains information on HECS and remission procedures are outlined clearly in the booklet.  The booklet states clearly that in order to withdraw from a course a student must advise the central student administration centre in writing before the census date of 31 August 2004 to avoid incurring a HECS debt.  The applicant by accepting and signing the HECS Payment Options Declaration entered into a contractual arrangement with the department, the terms of which were set out in the Booklet HECS 2004.  A lack of knowledge of the procedures for withdrawing from a course and claiming remission of the HECS payment was not beyond the control of the applicant.  That he chose to ignore his responsibilities under the terms of his contract does not relieve him from his contractual obligations. 

17. The Tribunal accepts the respondent’s contention that in order to establish that “special circumstances” existed the applicant had to show that all three elements of section 106L(3) applied to his circumstances. On the evidence of the applicant himself under cross-examination it was apparent to the Tribunal that the applicant chose to ignore the matter of his finances and embarked on a long and enjoyable summer holiday. The fact that he withdrew $778.00 from his Westpac savings account four days before the census date by internet banking means that he must have seen that the balance in his account was $600.00. The applicant was aware by the second semester what the rental position was in Utrecht and that he would be liable to pay rent in advance.

18.      The Tribunal accepts the respondent’s contention that on the applicant’s own evidence, he abandoned his overseas studies because of inadequate planning, resourcing and preparation, not because “special circumstances” existed which were beyond his control.

19.      The Tribunal confirms the reviewable decision was correct.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach, Senior Member

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  6 March 2006
Date of Decision  5 May 2006
Counsel for the Applicant         Ms C Henderson
Solicitor for the Applicant          Hobart Community Legal Service 
Counsel for the Respondent     Mr J Shears
Solicitor for the Respondent    Australian Government Solicitor