Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education - [2012] AATA 824

[2012] AATA 824

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/5091
Re	Quita Olsen
APPLICANT
And	Secretary, Department of Industry, Innovation, Science, Research & Tertiary Education
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	25 October 2012
Date of written reasons	22 November 2012
Place	Melbourne

The Tribunal:

does not have jurisdiction to hear the application in relation to the unity of study known as BCHM210: Introductory Molecular Biology and Biochemistry 1;
sets aside the decision under review and substitutes a decision that the applicant is not entitled to re-credit of her Student Learning Entitlement in relation to the eight other units of study.

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

G. D. Friedman, Senior Member

HIGHER EDUCATION ‑ application for re-credit of Student Learning Entitlement - outside application period – whether possible for application to be made in time – possible to be given its ordinary meaning.

Higher Education Support Act 2003 ss 79-1, 79-5, 79-10, 79-15

Family Law Act 1975

REASONS FOR DECISION

G. D. Friedman, Senior Member

22 November 2012

The matter before the Tribunal is a decision of 27 October 2011 not to re-credit Ms Olsen’s Student Learning Entitlement (SLE) in relation to subjects enrolled in at University of New England. On 8 December 2010 she sought re-credit of nine subjects that she studied in 2007 and 2008. On 27 September 2011 the university refused to re-credit Ms Olsen’s SLE with the exception of unit BCHM210, which wasn’t addressed in the decision. Ms Olsen then requested reconsideration on 21 October 2011 which led to the decision of 27 October 2011. In the refusal decision the university said that Ms Olsen does not meet the requirements of the relevant legislation which are contained in section 79-10 of the Higher Education Support Act 2003 (the Act). Because the units cover semester 1, 2007 to semester 2, 2008 which are outside the requirements of section 79-10, the original application for re-credit made on 8 December 2010 must be made within the 12 months before the end of the period and also that special circumstances in section 79-5 and 79-10 do not apply.
The decision of 27 October 2011 omitted subject PSI0220 Introductory Physiology 2, as a result, the decision maker was taken to have affirmed the earlier refusal of that particular subject. The issues before me are, first of all is whether there was a reviewable decision in relation to subject BCHM2109 which was not part of the reviewable decision, and the respondent has acknowledged that the Tribunal has jurisdiction for all other subjects because the decision regarding the units student except BCHM210 was made under section 79-1. There is no dispute that from at least early 2000, and Ms Olsen said actually things had started in 1996, there were numerous court applications and family law issues that involved Ms Olsen and her former partner when she was living on the Central Coast of New South Wales which resulted in apprehend domestic violence applications and orders.
In 2003/2004 orders were made under the Family Law Act 1975 in March 2004 and April 2004, and Ms Olsen was offered a place in the Bachelor of Science course at the University of New England on 7 December 2005. She was involved in ongoing family law proceedings in the Family Court and in May 2006 she applied for a special examination in a number of units and was granted that special examination as a result of her involvement in family law proceedings which affected her ability to undertake the course at the university.
The Family Court orders and applications continued throughout 2006 and in 2007, after semester 1 commenced, there was a Commonwealth assistance notice issued for certain units. Meanwhile, in June 2007 Ms Olsen applied for a special examination for three units and in the meantime orders were continuing or new orders were being sought in the Federal Magistrates’ Court. On 26 June 2007 the university approved special examination request in relation to two subjects but not a third one, that being BCHM210. Semester 2 then commenced on 19 July 2007. There were further court orders in the Federal Magistrates’ Court on 17 August and the census date for three of the subjects she studied occurred on 31 August 2007.
In September 2007, Ms Olsen attended a residential school at the university. The second semester of 2007 ended on 21 November, and on 20 January 2008 Ms Olsen enrolled in five subjects. On 21 January 2008 there was a lease agreement signed for a property in Portarlington in Victoria which appeared to be signed by Ms Olsen and that was the time where she moved from New South Wales to Victoria. On 11 February 2008, semester 1 commenced and in the meantime further proceedings were continuing in the Federal Magistrates’ Court and the court issued orders on 26 February 2008. And on 10 March 2008 there was a notice received that involved family matters that involved more court proceedings for Ms Olsen, and these were of a different nature.
On 30 March 2008 her enrolment in BCHM210 Introductory Molecular Biology and Biochemistry was withdrawn. On 30 March 2008 she lodged a change of name form with the university and told the university that she had altered her enrolment down to one subject. On 31 March 2008 there were orders issued in the Federal Magistrates’ Court and 31 March 2008 was the census date for PSIO210 Introductory Physiology. On about 16 April 2008 Ms Olsen attended a residential school at the university for three days or so out of the four days that the residential school was scheduled, and on 19 April 2008 there was an incident of a domestic nature in which she was required to become involved.
On about 20 June 2008 she was about to attend an examination but became aware of certain incidents involving family members and returned home immediately. 25 June 2008 was the end of the application period for semester 1 2007 units, and on 24 July 2008 semester 2 commenced and orders were issued in Federal Magistrates’ Court on 12 August 2008. 31 August 2008 was the census date for semester 2 units. Four of those units occurred. On 14 September 2008 her enrolment in PSIO220 Introductory Physiology was withdrawn and that was, as I understand, by the university and not by Ms Olsen.
On 18 September 2008 there was a Commonwealth assistance notice issued and on 8 October 2008 the university sent an email to her stating that there was no record of her attending the compulsory residential school for PSIO220 held from 14 to 17 September 2008. She was asked to show cause why she should not be withdrawn from the unit on the grounds of not having fulfilled the compulsory residential school requirement. 21 November 2008 was the end of the application period for semester 2 2007 subjects, and criminal matters that required Ms Olsen’s attention were referred to in the letter from the Office of Public Prosecutions on 18 December 2008.
Subsequently, intervention orders were granted on 9 April 2009 and 23 April 2009. There were further court orders in the Federal Magistrates’ Court on 5 May 2009 and 25 June 2009 was the end of the application period for the semester 1 2008 unit. On 26 August 2009 a medical certificate stated that Ms Olsen was unfit for work from 26 August 2009 to 25 November 2009. 14 September 2009 was the end of the application period for PSIO220 Introductory Physiology 2. 26 November 2009 was the end of the application period for the other semester 2 2008 units. And there was a further medical certificate on 6 January 2010 regarding a depressive condition and the effect on organisational abilities.
There was correspondence from the university on 10 February 2010 regarding concerns that had been expressed by Ms Olsen about her studies and circumstances that she was experiencing at the time. On 11 February 2010 the university sent an email to Ms Olsen advising her that she could commence her online studies for 2010 and there was a further medical certificate issued on 20 February 2010 concerning her medical condition that had commenced in 2008. On 29 July 2010 the university sent an email to Ms Olsen referring to events of 2007 and 2008 reminding her, or pointing out that provision existed for seeking a remission of Higher Education Contribution Scheme for the units that Ms Olsen had failed, and giving her details of how to apply for the remission.
There was further email correspondence between the university and Ms Olsen about those matters and subsequently the application for re-credit was made on 8 December 2010 as I have described. Following the decision on the request for reconsideration, Ms Olsen filed an application with this Tribunal on 24 November 2011. That is the general background of the circumstances.
In the original application for re-credit, there were nine subjects involved, and for the purpose of the record, I will go through those. The first was BCHM210, introductory molecular biology and biochemistry one; BCHM220, introductory biochemistry two; MRCR220, introductory microbiology; PSYC102, introductory psychology two; PSIO210, introductory physiology one; BCHM220, introductory biochemistry two; MRCR220, introductory microbiology; PSYC102, introductory psychology two; PSIO210, introductory physiology two. In the original decisions made on 27 September 2011 no decision was made on BCHM220.
In the review decision on 27 October 2011 the decision-maker at the university determined, with the exception of PSIO220, which was not addressed in the decision, that the application had not been made before the end of the relevant application periods and the decision-maker refused to waive the condition that the application be made before the end of the application period under section 79-15(1)(b).
It seems there is no dispute that the decision-maker is taken to have affirmed the original decision regarding PSIO220. In relation to BCHM210 there seems to be agreement and I accept that the Tribunal has no jurisdiction to consider that subject because no reviewable decision was made on that subject. In its statement of facts, issues and contentions, the respondent set out a number of scenarios regarding interpretation of the Act. Mr Maundrell submitted, on behalf of the respondent, that the changes to the Act mean that the old version applies to decisions made prior to 1 January 2012. And I accept that submission and I find that the former provisions apply.
The question that was raised in the statement of facts and contentions was whether in relation to the remaining eight subjects, that is the nine subjects less BCHM210, whether I have the power to exercise a discretion under section 79-1(1)(e) or whether I should apply section 79-15(1) and whether that section contains provisions that need to be satisfied before I can consider section 79-1. In my view, I have power to exercise a discretion to waive an application period for study under 79-1(1)(e)(ii) of the Act because, in my view, that’s the appropriate interpretation. And the suggestion that I do not have power to consider the application at all because of the provisions of section 79-15 is one that I do not accept.
The Tribunal needs to consider the provisions of section 79-1(1)(e) which involves exercising a discretion to waive the requirement that the application be made before the end of the application 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. If I find that the requirement that the application be made before the end of the period should be waived, I then would need to consider section 79-1(1)(c) which includes considering whether special circumstances apply to Ms Olsen.
So in considering whether I should waive a requirement that the application be made before the end of the period - and there is no dispute from Ms Olsen that she did not make her application for re-credit before the end of the application period - but she has said a number of things. First of all, that she did not know until she had lodged her application with this Tribunal that the issue of her lodging her application out of time, or that she was out of time because she lodged her application late, was an issue because it hadn’t been raised by the University of New England. She also was critical of the university for the way they addressed the issue in their original decision and the reviewable decision, which really made it very difficult for her to present her case to this Tribunal because they had given her incorrect information.
Mr Maundrell acknowledged the university had not - when it made its original the reviewable decision, had not really done all it could, for one subject was not considered at all and another subject was considered incorrectly. Certainly, from what I have been told and what I have read, it was not until 29 July 2010 that Ms Olsen became aware that she was able to seek a re‑credit for the subjects involved. In relation to the specifics of section 79-1(1)(e)(ii), I have to consider whether it was possible for her to apply for remission to be made before the end of the application period.
Mr Maundrell submitted that the word “possible” should be given its plain or ordinary meaning. That is whether the application was capable of having or being achieved. That is a definition from the Concise Oxford Dictionary. Ms Olsen says that it was not possible for her to make the application before the end of the application period. She described to me the difficulties that she was facing in relation to ongoing Family Law and Criminal matters that were exercising attention and the need for her to relocate from New South Wales to Victoria. I do not doubt anything that she has told me today; it must have been a traumatic experience over a long period involving herself, and her children and former partners.
And I accept that having to relocate and having to look after one’s family in circumstances involving violence or threats of violence would take their toll on Ms Olsen. And Ms Olsen has produced documents in which medical practitioners have referred to chest pain that she had for a number of years which she attributed, to some degree, to the stresses that she was experiencing over all of those years. I also have documents from a psychologist indicating that Ms Olsen had difficulty functioning, and that she had difficulty attending to normal day-to-day household requirements, and matters such as paying bills and organising her life.
Ms Olsen confirmed that was the case. She said that her medical condition and the events that she was experiencing during the relevant period, 2007 and 2008, affected her ability to make judgements. And she had physical problems, escalating fear involving the need to seek protection for herself, and her family and escalating relationship issues. Basically, what she was telling me was that these matters applied during second semester 2007, first semester 2008 and the second semester 2008. She says that, in relation to her studies, there were periods where she just could not face the prospect of undertaking study, and at one stage she just gave up with everything that was going on in her life at the time.
In relation to particularly the first semester 2008 she said she was not capable of making cognitive decisions, and the move to Victoria was an attempt to escape from a situation which was highly unsatisfactory but in the end proved to be a source of new problems. And that caused her considerable anxiety and stress as well. She says that in 2008 she had no communication with the university. Her general view of the situation in 2007/2008 was that she had life decisions to make, she was in survival mode and she did not know about the decision or the ability to seek re-credit for the fees for those subjects. So it is a little - well, my interpretation is that, as I expressed during the hearing, that it is a little difficult to reconstruct what you would have done or might have done had you known about something. But she said that on the scale of priorities her studies and matters such as seeking re-credit, had she known about them even, would probably have been, not surprisingly, a less priority than surviving day-to-day, feeding her family and trying to sort out the difficult issues in which she was involved.
I have no doubt that Ms Olsen’s account of what was happening at the time is an accurate one, in terms of her ability to organise her life. It was put to me by Mr Maundrell, however, that in the second semester 2007 she was able to engage with administrative processes at the university, in that she enrolled in semester 1 and semester 2 2008 units, she withdrew from a semester 1 2008 unit before the census date, and she lodged a change of name form with the university and inquired on that form about her enrolment, that she attended a residential school at the university in September 2007. In relation to first semester 2008, it was put to me that she withdrew from a semester 1 unit 2008.
It was submitted to me that although her contact with the university had ceased, that she was able to initiate and attend various legal processes relating to her personal affairs and that she had signed a lease to move to Port Arlington in Victoria. That was semester 1, 2008. In semester 2, 2008 it was submitted that once again she had initiated and attended to various legal processes relating to her personal affairs that despite her lack of contact with the university she would have been able to seek to re-credit if she had applied for it. During her evidence Ms Olsen stated, that in relation to semester 1 of 2008 that there was a period when she could have made an application; but she said that was a very small window of opportunity and that the rest of the time, with all the other matters that had been going on as I have described, that it wasn’t possible for her to lodge an application, had she known she could have.
In my view, and the plain and ordinary meaning of the word “possible” is whether something is capable of being done. In saying that, I accept that Ms Olsen’s personal circumstances were very severe and I accept that she suffered trauma and ongoing anxiety in relation to her own welfare and that of her children. The reality is that she was able to attend to day-to-day activities. I accept her evidence that there were bills piled up at the door but during the periods in question in second semester 2007 she did make contact with the university in various degrees that I’ve described, lodging the change of name form, enrolling in semester 1 and semester 2 units, relocating and engaging generally with the university to some degree. In my view it was possible in second semester 2007 for her to have applied for re-crediting, despite the ongoing legal processes that she was involved in as well.
One could even argue that because she was able to involve herself in the legal processes that this was just really a lot easier to do had she known about it to send an email to the university asking for re-credit, particularly given that she was an off-campus student doing the course by internet. So Ms Olsen was certainly familiar with the use of the internet and she was familiar with the use of email and in my view despite her difficult circumstances during second semester 2007 it was possible for her to make her application for re-credit before the end of the application period. In the first semester 2008 she did lodge her change of name form. That was in on 30 March so she did have some degree of contact with the university. She wrote a handwritten note on that seeking clarification of her status and she did attend the residential school in April 2008. In my view because of those matters and despite her difficulties in her life at the time, it’s my view that it was possible for her to have made an application for re credit before the end of the application period.

In semester 2, 2008 there was no contact with the university however she was continuing to deal with as best she could other matters involving legal processes and it is my view that even if there was a short period of time within that semester that she was lucid enough or physically capable of sending an email to the university then that would have been possible for her to do so despite her general condition at the time. The Tribunal has taken into account all the material, including the medical material in relation to her state of mind and her ability to function and her own evidence as to her competency and ability to manage her life at the time. Applying the ordinary meaning of the word “possible” I don’t believe that she has satisfied the criteria in the Act and therefore I find that she does not satisfy section 79-1(1)(e)(ii) and therefore she cannot satisfy section 79-1(1)(e) and can’t satisfy section 79-1. Therefore there is no need for me to consider the special circumstances for re-crediting SLE set out in the Act and that is section 79-1(1)(c).
Given my finding about subject BCHM210 my decision is that I have no jurisdiction to hear an application in relation to BCHM210 and I set aside the decision under review and substitute a new decision refusing to re credit Ms Olsen’s SLE regarding the remaining eight units

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

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

Associate

Dated 22 November 2012

Date of hearing	28 October 2012
Applicant	In person
Advocate for the Respondent	Mr Shane Maundrell, Principal Legal Counsel