PHAM and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2011] AATA 391

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 391

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4964

GENERAL ADMINISTRATIVE DIVISION		)
Re		KHANH PHAM

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  G. D. Friedman, Senior Member

Date 20 April 2011

Place Melbourne

Decision  The Tribunal affirms the decision under review.

..............................................

Senior Member

CATCHWORDS – Higher Education Contributory Scheme – Fee remittal – Eleven years out of time

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G. D. FRIEDMAN, Senior Member

No. V2010/4964

PHAM

and

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

WEDNESDAY, 20 APRIL 2011

MR PHAM appears in person

MS K.L. COKER appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS   [3.06 pm]

MR FRIEDMAN:   The decision under review is a decision by Victoria University not to remit the Higher Education Contribution semester debt in relation to Mr Pham, for the unit of study BH002250 Advertising in Public Relations, which Mr Pham studied in semester 1, 1998.  There’s no dispute that in semester 1, 1998, Mr Pham enrolled in that particular subject, Advertising in Public Relations.  The semester commenced on 2 February 1998, the census date for first semester 1998 was 31 March 1998 and the semester ended on 12 June 1998.  12 months after the last day of semester 1998 was the last day for Mr Pham to apply for remission of his Higher Education Contribution semester debt for that particular unit;  that is, 12 June 1999.

Mr Pham made an application for remission of the debt on 15 June 2010, which was 11 years and three days after the last day.  The university advised him on 23 June 2010 that his application was out of time and that the debt would not be remitted.  He sought review on 15 September 2010.  The university advised him on 6 October 2010 that it affirmed the original decision, and on 15 November 2010 Mr Pham applied to this Tribunal for review of the decision. 

Mr Pham maintains that he decided not to proceed with the study of that particular course.  He approached the subject coordinator, Dr Kathy Tangalakis, and discussed with her the arrangements for withdrawing from the subject.  He says that she assured him that she would handle everything.  He said that she and he completed the withdrawal form, which was later to be handed in to the administration office.  The particular form has a space for the course coordinator to sign, and for the student to sign, and it is the responsibility of the student to lodge the form.

Notwithstanding that it was the responsibility of the student to lodge the form, Mr Pham maintains that he was assured by Dr Tangalakis that she would submit the form on his behalf and that he had no further role in ensuring that the withdrawal form was completed and the university records amended accordingly.  What, in fact, happened was that the withdrawal form was not completed in the approved manner in the time limit prescribed by the university.  Consequently, Mr Pham was awarded a fail mark for the subject.  When he discussed the matter with the university authorities, the decision was made by the university to change the result from fail to “W”, which at that time represented a late withdrawal.  Mr Pham then became aware that he, in fact, had been charged for the subject and that charge was added to his Higher Education Contribution Scheme debt, even though, in his mind, he had made it perfectly clear to the relevant authorities within the university that he was no longer studying the course, and he assumed that all necessary administrative action had been taken on his behalf.

He said that the period of 11 years that has elapsed between withdrawing from the subject and seeking review of the decision not to remit that part of the fee relating to the particular subject, came about when he realised that he was still liable for the Higher Education Contribution Scheme debt and he did not believe that that debt was properly incurred and he shouldn’t have to pay it, particularly as he saw the fault lying not with himself but with the university, … [including] Dr Tangalakis and the university administration.  I have before me a statement by Mr Fotios Lampropoulos, who was manager of the admissions and enrolment office at Victoria University, and is responsible for overseeing student administration and records.  And in that statement …[it] appears to be undated, but it was received by the Tribunal on 20 December 2010 and … I will include [it] in the Tribunal’s records as exhibit R1…

In that, Mr Lampropoulos states that electronic searches and other searches were made for records of Mr Pham’s enrolment details in 1998.  He said that Victoria University is required to hold a student’s records for seven years and that, after taking all reasonable searches to look for records and document[s] about Mr Pham’s enrolment, he has been unable to find any, and the inference is that all relevant documents from that period have been destroyed pursuant to the relevant legislation.  I’m satisfied, after reading the statement, that all relevant searches were made and that the documents no longer exist from 1998 relating to Mr Pham.  So, it’s not possible for me to determine what exactly was said by Ms Tangalakis and the discussions she had with Mr Pham at the time, or the administrative secretary of the university at the time.

In evidence, Mr Pham conceded that for him to receive assistance under the Higher Education Contribution Scheme, he had signed a form headed Higher Education Contribution Scheme Payment Options Declaration Form, which included personal details, the name of the course and …[his] tax file number.  He agreed that, having signed that form, he would have noted the declaration that he had read the booklet called HECS Your Questions Answered.  That booklet contains information about repaying loans, withdrawing from courses and, on page 23 of the brochure, there is a heading How Do I Apply to DEETYA – Department of Employment, Education, Training and Youth Affairs – to Get My HECS Debt Reduced or Removed?  That booklet states:

If you wish to apply for remission of part or all of your deferred debt you must –

and then a side heading, Procedures:

Obtain and read a copy of instructions for applying for remission of HECS/OLDPS Debt in special circumstances from your institution’s student administration office, complete the application for remission form, send the form and supporting documentation to The Secretary, Department of Employment, Education, Training and Youth Affairs (DEETYA), LC 729, GPO Box 9880, Canberra ACT 2601, attention Private Funding Sections.

It also notes the time limits.  There are legal time limits – and I’m paraphrasing here.  For units commenced before 1 January 1998 your application must reach the Secretary within three months of the census date for the semester for which you enrolled.  And for units commenced after 1 January 1998, if you are applying for remission for units which were commenced after 1 January 1998, your application must reach the Secretary within 12 months from the date you withdrew from your studies.  Now, I am satisfied that, in signing that form, Mr Pham was aware, or should have been aware, of procedures involved in seeking remission of a HECS debt, notwithstanding his evidence to me about relying on Dr Tangalakis for making sure that the withdrawal was actioned by the university.  In my view, the actions to make sure that the withdrawal took place is a separate issue from the issue that I have just referred to, and that is, applying to the Department for the HECS debt to be reduced or removed;  in other words, remitted.

So even if I were to find, as Mr Pham is urging me to, that mistakes were made by the university – by Dr Tangalakis, by the administration or anybody else – that does not remove from him the requirement to seek remission of the debt within 12 months and that that remission be sought from the Secretary of the Department who is the person nominated in the legislation.  …  Mr Pham conceded in his evidence that he had not sought remission within the 12-month period following the guidelines that are set out in the brochure by requiring him to have written to the Secretary in the approved form with supporting documentation.

The relevant legislation is the Higher Education Funding Act 1998.  Section 106L of that Act provides that under section 106J, subsection (1), when the Commonwealth makes a loan to a person, the person incurs a Higher Education Contribution semester debt to the Commonwealth equal to the amount of a loan, and section 106L of the Act, subsection (1):

The Secretary may, in writing, remit the whole or part of a person’s Higher Education Contribution semester debt if –

and there is subsection (a), followed by the word “and”, subsection (b), followed by the word “and”, subsection (c):

The person applies in writing to the Secretary for remission of the debt within 12 months after the person’s withdrawal in relation to a unit in the person’s course of study for the semester.

In the decision of this Tribunal Re Massey v Secretary, Department of Education, Science & Training (2005) AATA 581, Senior Member Kelly stated at paragraph 28:

Accordingly, I find that Samuel had to apply for remission of his HECS debts within a 12-month period of the withdrawal date in respect of each semester –

and then she gives the dates –

Unfortunately, he did not do so and I have no power to alter that time limit.

I agree with that comment, that there is no discretion for the Tribunal to alter the time limit and I find, for the reasons that I have already given, and as conceded by Mr Pham, that he did not apply in writing for remission of the debt within 12 months after his withdrawal.  In fact, it was around 11 years.  Therefore, I find that he cannot satisfy section 106L, subsection (1)(c), of the Act.  Therefore, he cannot satisfy subsection (1), and therefore he cannot succeed in his application, regardless of any findings that I might or might not make in relation to subsection (1)(a) or (1)(b) of section 106L of the Act.  Therefore, I have no option but to affirm the decision under review. 

…

MATTER ADJOURNED at 3.22 pm INDEFINITELY

END OF EXTRACT