Sadeque and Secretary, Department of Education, Skills and Employment

[2021] AATA 3729

Sadeque and Secretary, Department of Education, Skills and Employment [2021] AATA 3729 (15 October 2021)

Division:GENERAL DIVISION

File Number(s):      2020/3571

Re:Mohammed Sadeque

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson AM

Date:15 October 2021

Place:Brisbane

The reviewable decision is affirmed.

……..........[SGD].........................

Senior Member P J Clauson AM

Catchwords

HIGHER EDUCATION – University – HECS-HELP Debt – Special circumstances – Whether circumstances beyond student’s control – whether circumstances made impact known after census date – Decision affirmed.

Legislation

Higher Education Support Act 2003
Legislation Act 2003

Cases

Montenegro v Secretary, Department of Education [2020] FCAFC 210

Secondary Materials

Administration Guidelines 2012

REASONS FOR DECISION

Senior Member P J Clauson AM

15 October 2021

1. Mohammad Sadeque (the ‘Applicant’) enrolled at the University of Southern Queensland (the ‘University’) on 6 August 2019 in a unit of study within a Master of Engineering course, namely ENG8308 – Industry Project (the ‘Unit’).

2. On 20 March 2020, the Applicant applied to the University for remission of his HECS-HELP debt under the Higher Education Support Act 2003 (the ‘Act’) in relation to the Unit.[1] 

   [1] Exhibit 1, T-Documents, T8, 67.

3. The Applicant’s application was declined by the University on 9 April 2020 (the ‘Decision’).[2]

   [2] Exhibit 1, T Documents, T9, 69-71.

4. The Applicant then sought a review of the Decision with additional supporting material on

   
   

   9 April 2020.[3]

   [3] Exhibit 1, T Documents, T10, 72-74.

5. The University affirmed the Decision regarding the Unit on or about 20 May 2020 (the ‘Review Decision’).[4]

   [4] Exhibit 1, T Documents, T11, 76-78.

6. The Applicant then sought a further review by the Administrative Appeals Tribunal (the ‘Tribunal’) on 14 June 2020.[5]

   [5] Exhibit 1, T Documents, T1, 1-19.

   ISSUES FOR THE TRIBUNAL

7. The issue for the Tribunal to determine is whether subparagraph 36-20(1) of the Act applies to the Applicant in regard to the Unit.  If it does, then the Applicant has special circumstances within the meaning of the Act as to permit a remittance of his HECS-HELP debt.

   THE LEGISLATION

8. The legislation governing the Applicant’s situation is contained in the Act and the sections applicable to the Applicant are set out below as follows:

   36‑20Providers to repay amounts—special circumstances

   (1)A higher education provider must, on the *Secretary’s behalf, determine that this section applies to a person if:

   (a)the person has been enrolled as a *Commonwealth supported student with the provider in a unit of study; and

   (b)the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; and

   (c)the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and

   (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.

   Note 1:A HECS‑HELP debt of a person to whom this section applies is remitted under subsection 137‑5(4).

   Note 2:A decision that this section does not apply to a person is reviewable under Part 5‑7.

   (2)If the provider determines that this section applies to a person, the provider must:

   (a)pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and

   (b)pay to the Commonwealth an amount equal to any *HECS‑HELP assistance to which the person was entitled for the unit.

   (3)Subsection (2) does not apply to the provider if:

   (a)the person enrolled in the unit as a *replacement unit; or

   (b)it is determined that section 36‑24A applies to the person.

   (4)The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to circumstances to which paragraph (3)(a) applies:

   (a)the amount (if any) that is to be paid to the person; and

   (b)the amount (if any) that is to be paid to the Commonwealth; and

   (c)the person (if any) who is to pay the amounts.

   (5)If a determination made under subsection (1) is made in writing, the determination is not a legislative instrument.

   36‑21Special circumstances

   (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; 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.

   Note:Guidelines made for the purposes of this subsection also have effect for the purposes of subsections 97‑30(2) and 104‑30(2) (re‑crediting a person’s HELP balance).

   36‑22Application period

   (1)For the purposes of subparagraph 36‑20(1)(f)(i), if:

   (a)the person has withdrawn his or her enrolment in the unit of study; and

   (b)the higher education provider gives notice to the person that the withdrawal has taken effect;

   the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

   (2)If subsection (1) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.

   36‑23Dealing with applications

   (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.

9. Further significant guidance is provided to the decision maker in the Administration Guidelines 2012, (‘Administration Guidelines’) a legislative instrument made by the Minister pursuant to subsection 238-10(1) of the Act. The Administration Guidelines are therefore a legislative instrument as defined within the meaning of section 8 of the Legislation Act 2003 (Cth), and thus enjoy the status of a subordinate legislative enactment as opposed and in contrast to a Ministerial or Departmental policy guideline. Although the latter should be considered and followed generally, decision makers are not bound so to do if that course is appropriate.

10. In such matters as this now before the Tribunal, the Administration Guidelines become of inescapable importance for the decision maker as Subsection 36-21(2) of the Act requires that the decision of a higher education decision provider under section 36-21 ‘must be in accordance with’ the Administration Guidelines.

11. The meaning and import of this directive was recently considered in the decision of Montenegro v Secretary, Department of Education,[6] where it was observed that where it was expressed that a decision was to be made ‘in accordance with’ the Administration Guidelines, the Guidelines themselves become a ‘substitute regime’ with which the Tribunal must comply. Justice Charlesworth (at [64]) made the further observation that it was not the intention of the Legislature for the Administration Guidelines to operate as ‘relevant considerations’ but to form part of the Act under which the decision maker’s powers are conferred.

    [6] [2020] FCAFC 210, [25] per Flick J.

12. Chapter 3 of the Administration Guidelines contains the relevant requirements which specify the material considerations to be examined and taken into consideration when the Tribunal is assessing whether or not an Applicant seeking relief pursuant to section 36-21 of the Act as in this matter,  has ‘special circumstances’ which warrant the granting of the relief sought.

13. The purpose of those guidelines at Chapter 3 is to specify those circumstances where a higher education provider will be satisfied that special circumstances apply to a person in the Applicant’s situation.

14. The special circumstances exist under the Act when they:

    (a)Are beyond the person’s control;[7]

    (b)Do not make their full impact on the person until or after the census date for the unit of study in question;[8] 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.[9]

    [7]  s 36-21(1)(a).

    [8]  s 36-21(1)(b).

    [9]  s 36-21(1)(c).

15. The Administration Guidelines further expand upon the topics to be considered in Chapter 3 from paragraph 3.5 through to paragraph 3.15 inclusive as set forth herein:

    3.5       CIRCUMSTANCES BEYOND A PERSON’S CONTROL

    3.5.1 A higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.

    3.5.5 The situation referred to in paragraph 3.5.5 must be unusual, uncommon or abnormal.

    3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE

    3.10.1A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:

    (a)       before the census date, but worsen after that day; or

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

    (c)       on or after the census date.

    3.15     CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS

    3.15.1A higher education provider will be satisfied that a person’s circumstances 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 if circumstances such as the following occur:

    (a)  medical circumstances.  For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or

    (b)  family/personal circumstances.  For example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies; or

    (c)employment related circumstances.  For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or

    (d)  course related circumstances.  For example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.

    A person is unable to complete the requirements for a unit if the person is unable to:

    (a)  undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or

    (b)       complete the required assessable work; or

    (c)       sit the required examinations; or

    (d)complete any other course requirements because of their inability to meet (a), (b) and (c) above.

    
    THE PARTIES’ CONTENTIONS

    The Contentions of the Applicant

16. The Applicant contends that he was prevented from being able to complete his studies as a result of a medical condition namely, stress, which amounted to special circumstances within the context of paragraph 36-20(1)(d) and section 36-21 of the Act and the requirements of the Administration Guidelines as they apply to his situation between November 2019 and February 2020.

    The Contentions of the Respondent

17. The Respondent contends that the Applicant cannot demonstrate special circumstances within the meaning of s 36-21 of the Act. It appears that, aside from the question of

    
    

    s 36-20(1)(d) which was plainly in dispute, it was uncontroversial that the Applicant would succeed in respect of each other requirement under s 36-20 of the Act.  It is the Respondent’s fundamental contention that the Applicant is unable to establish that special circumstances apply to him.

    CHRONOLOGICAL HISTORY OF THE MATTER

18. The Tribunal, in forming a decision in this matter, has considered in its deliberations both of the chronologies of facts as outlined by each of the parties (and which were attached to each parties’ respective Statement of Facts, Issues and Contentions).[10] The Tribunal will refer to the relevant parts of those documents where it is necessary or desirable to do so.

    [10] Exhibit 3.

19. There are three important dates which the Tribunal considers are relevant to the question before it. Those dates are:

    (a)6 August 2019, being the date upon which the Applicant enrolled in the Unit;[11]

    (b)6 December 2019, being the census date for the Unit;[12]

    (c)14 February 2020, the end date for semester 3, 2019 and the date upon which the work piece for assessment entitled ‘Final Report’ was due for the Unit in question.[13]

    [11] Exhibit 1, T Documents, T3, 27.

    [12] Exhibit 1, T Documents, T6, 63.

    [13] Exhibit 1, T Documents, T6, 63; T12, 80.

20. Between 6 August 2019 and 6 December 2019, the Applicant was in receipt of medical and psychology treatments. The first record of his medical consultation within this period is contained in a medical certificate of Dr Stamatios Ktenas (a general practitioner), in which the Applicant was certified to be “unfit for work/school from 04/11/2019 to 05/11/2019 inclusively due to medical reasons”.[14]

    [14] Exhibit 1, T Documents, T1, 11.

21. The Applicant was referred by Dr Nan Gu on 6 November 2019 to Uplift Psychological Services for an opinion and management of ‘stress from work’ under a Mental Health Care Plan (‘MHCP’).[15] The Applicant commenced the MHCP for a diagnosis described as ‘stress’ on that date under the supervision of his General practitioner Dr Nan Gu.[16]

    [15] Exhibit 1, T Documents, T1, 14.

    [16] Exhibit 1, T Documents, T1, 15.

22. On 12 and 18 November 2019, the Applicant accessed the Gryphon Psychology Employment Assistance Program (EAP).

23. The semester 3 teaching program commenced on 18 November 2019.[17] The Applicant again accessed the Gryphon Psychology EAP on 21 November 2019.

    [17] Exhibit 1, T Documents, T6, 63.

24. The Applicant, as part of his Unit course work, was required to submit a piece of assessment titled ‘Draft Progress Report’ on 3 December 2019.[18]

    [18] Exhibit 1, T Documents, T2, 80.

25. The Census Date fell on 6 December 2019 and on 10 December 2019 the Applicant was issued a Commonwealth Assistance Notice for the Unit.[19]

    [19] Exhibit 1, T Documents, T7, 65.

26. The Tribunal notes that Mr Lutherborrough, a clinical psychologist of Uplift Psychological Services, confirmed by way of a letter dated 20 March 2020 that he had treated the Applicant on six occasions between 14 December 2019 and 1 January 2020.[20] This document was further confirmed by the contents of Mr Lutherborrough’s later report on the Applicant dated the 29 August 2020, which formed part of the Applicant’s submissions.[21]

    [20] Exhibit 6.

    [21] Exhibit 4.

27. The later report of Mr Lutherborrough refers to the Applicant’s mental state as he saw it on two significant dates relevant to these proceedings. On 14 December 2019, he states that the Applicant’s ‘mental condition was quite severe’ and then again, on the 1 February 2020, he reports that the Applicant had ‘reported improvement in symptoms’.[22]

    [22] Exhibit 4.

28. The semester then ended on the 14 February 2020 and the ‘Final Report’ assessment piece fell due that day.

29. On 20 March 2020, the Applicant submitted his Waive Penalty Request in which he stated that he had been suffering medical issues since November 2019 and that these had affected his day-to-day life and “also to undertake any studies”.[23] He claimed that as a result of his condition he was unable to focus on anything and that everything was beyond his control and that he was still in recovery from his medical issues. He sought a waiver of ‘Academic Penalty and Fee for Semester 3’.

    [23] Exhibit 1, T Documents, T8, 66.

30. The University advised the Applicant on 9 April 2020 that his request was not approved.[24] That same day, the Applicant requested a review of that decision.[25] The University advised the Applicant that his request was unsuccessful and that the original decision had been affirmed on 20 May 2020.[26]

    [24] Exhibit 1, T Documents, T9, 69-71.

    [25] Exhibit 1, T Documents, T10, 72-73.

    [26] Exhibit 1, T Documents, T11, 76-78.

31. A report of Dr Al-Bermani (General Practitioner) of 2 June 2020 stated that the Applicant:

    ‘was suffering from work related stress from 06/11/2019. He has been referred to psychologist for further treatment. He was under treatment till 01/02/2020. During this time his concentration level was severely affected and he was unable to complete any study requirements (examination or assessments) and he was on limited work duties’.[27]

    [27] Exhibit 1, T Documents, T1, 18.

32. The report of Mr Lutherborrough of 29 August 2020, in addition to confirming the Applicant’s sessions with him under the MHCP, outlined several additional circumstances which he says would have affected the mental health of the Applicant, namely:

    (a)His wife was suffering from depression;

    (b)His wife’s depression was affecting the welfare of his two daughters aged 6 and 4 years respectively and who were diagnosed with Autism Spectrum Disorder;

    (c)He was concerned with obtaining adequate support for his wife and children while he was away from home working interstate; and

    (d)He was having difficulty in the workplace with a colleague who, in the opinion of the Applicant, had not been conducting himself in a safe and mature manner.[28]

    [28] Exhibit 6.

33. Mr Lutherborrough opined that the Applicant presented with Adjustment Disorder leading to his inability to cope with a number of negative psychosocial issues in his life.

34. The report also noted that the Applicant received Cognitive Behavioural Therapy, Acceptance and Commitment Therapy and Solution-Focused Therapy to address the stressors which were currently affecting him.

1. Further, Mr Lutherborrough noted that at the commencement of the session on

   
   

   14 December 2019, the Applicant’s mental condition was quite severe but that by

   
   

   1 February 2020 his proactive approach in addressing his symptoms had resulted in a reported improvement.

   THE HEARING AND EVIDENCE

2. The hearing took place by telephone on 19 March 2021. The Applicant represented himself with a support person present and gave evidence on affirmation. The Respondent was represented by Ms Katherine Cooke.

3. The Applicant’s evidence was that he had enrolled in the Unit on 6 August 2019 and that he had informed himself about the requirements of the Unit at the time.[29] He told the Tribunal that at that time he felt that he would be able to comply with the requirements of the course. The requirements he outlined required the student to do some research and to come up with solutions to a problem and thus meet all the objectives of the subject.

   [29] Exhibit 1, T Documents, T3, 27.

4. He agreed that he had held discussions with his teacher around about August and September 2019 regarding the course work but didn’t remember the specific details of those discussions. He confirmed that at the time of his enrolment he considered the census date and the other dates relevant to the completion of stages of the Unit. He also stated that he knew he had to complete the Unit requirements by February 2020.

5. When he was questioned about whether he understood the obligations upon students when they enrolled as set out in paragraph 4.1 (‘Student responsibility’) of the Enrolment Procedure the Applicant responded that he did.[30] That particular paragraph states:

   Students are responsible for modifying their enrolment when their circumstances make it unlikely that they can successfully undertake the study of a course.

   [30] See Exhibit 1, T Documents, T5, 34.

6. In the period leading up to 4 November 2019, the Applicant says he had been working for a company called CBP Contractors on a tunnel project in Sydney known as “Medium Five’. He stated that he had started with the company on that project in November 2018 and had ceased his employment with them in April 2020.

7. His role was that of Senior Engineer, Commissioning Team and required him to work on the commissioning arrangements for the high voltage lines associated with the project and to check the high voltage systems to ensure that they complied with the Australian Standards for installation prior to their being commissioned into use.

8. The Applicant was contracted to work for five days a week for a forty-hour week.  He gave evidence that he would sometimes work more hours than as stipulated under certain conditions in the contract and sometimes on weekends. That was not the situation all of the time, but work would be done as the situation demanded to meet deadlines from time to time.

9. The Applicant told the Tribunal that he became concerned about the actions of a co-worker from around the end of August. The co-worker started going on site with the Applicant around the end of October  or early November (the Applicant was unsure)  and would wear ‘sneakers’ as opposed to safety boots or Personal Protection Equipment on these occasions. This upset the Applicant, as he felt responsible for other employees on the site and the thought of an accident involving another employee on ‘his watch’ weighed heavily upon him.

10. The Applicant also told the Tribunal that sometime between November and December he was re-assigned from the Commissioning Team to the Engineering Team against his will. His evidence was that he suffered stress in the workplace because he had the systems and operational arrangements working for him in the commissioning role and that in the engineering role he was not supplied with the appropriate tools to allow him to achieve satisfactory results. He stated that his performance was being criticised regularly and he felt that his work in the Commissioning Team was now being devalued. He told the Tribunal that, at that time he was working from 10 to 14 hours per day. He also told the Tribunal that he was told that as he didn’t have the responsibility of supervising the troublesome person in the Commissioning Team he should be able to do the work more easily.

11. The Applicant’s evidence was that his children had been diagnosed with Autism Spectrum Disorder in about 2017 as regards the first child and 2019 as regards the second of the children. He thought his wife had been diagnosed with depression sometime before November 2019.

12. The Applicant was working away in Sydney in November 2019 and he told the Tribunal that he would work two weeks on and then have a weekend off and that when he had been working in Chinchilla in Queensland he would have 14 days on and 14 days off but that in November 2019 he was only working in Sydney.

13. He told the Tribunal that the mental stress he was suffering manifested itself first by his feeling ‘unsettled’ which was why he went to see Dr Ktenas who certified him as unfit for work or school due to ‘medical reasons’ .[31] The Applicant also confirmed that Dr Ktenas did not specify any treatment for him following that consultation but that Dr Gu on the 6 November 2020 did refer him to Uplift Psychological Services for opinion and management of stress related to work pursuant to the MHCP she and he had prepared for him.

    [31] Exhibit 1, T Documents, T1, 11.

14. The Applicant also saw Dr Al-Bermani on 8 November 2019 but stated that he could not remember why he went to see him on that day. The Applicant confirmed that the second certificate of Dr Al- Bermani dated the 27 September 2020 which referenced the consultation that the Applicant had with Dr Al-Bermani on 8 November 2019 stated that the Applicant was suffering from ‘stress, anxiety and depression’ and that the Applicant’s condition was severe but that the doctor did not tell him at that time what he thought was affecting him.

15. The Applicant also agreed that on 8 November 2019 that Dr Al-Bermani recommended that he should take some time off work as participating in work or study would have made his situation worse.  

16. The Applicant told the Tribunal that he was absent from work from 8 November until 24 November 2019 and that when he returned to work he was placed on light duties by verbal agreement with this employer. He agreed when asked about his consultation with Dr Al-Bermani in June 2020 that the doctor found him to be much better, and the Applicant agreed that attending the sessions with Gryphon Psychology and Uplift Psychological Services had helped him to get better.

17. The Applicant also confirmed that he accessed the Employee Assistance Program through Gryphon Psychology Services on the 18 November 2019 which was also the date of commencement for semester 3, and again on 21 November 2019 but that he did not do so again past that date. He explained that he ceased the program as he felt it was not assisting him past the first session. He agreed however, that had he wished to, he could have accessed that service again.

18. The Applicant when asked whether he knew that 3 December 2019 was the date for the draft progress report to be submitted for the Unit stated that he didn’t know that in November and nor did he know on the day of 3 December that it was due in fact, on that day itself. He stated that he was effectively unable to keep track of dates because of his condition at that time. He also told the Tribunal that when he enrolled he did not diarise any of the key timeline dates relative to the Unit.

19. The Applicant told the Tribunal that the first date he could get for an appointment with Uplift Psychological Services was 14 December 2019. He also told the Tribunal that he did not remember speaking to Mr Lutherborrough about his university studies at the time he was consulting him. He also confirmed to the Tribunal that the Applicant underwent six sessions with him between 12 December 2019 and 1 February 2020 and that the Applicant was taught coping mechanisms, exercises and lifestyle adjustments regarding diet. His mental health gradually improved.

20. The Applicant also said that in response to a question from Ms Cooke as to whether Mr Lutherborrough had advised him during any of the sessions that he was suffering from Adjustment Disorder, that ‘---No, he did not mention anything, but I believe that in the background he was actively working on it’.[32]

    [32] Transcript of proceedings, P-22.

21. The Applicant did however, later in his evidence state that when he asked Mr Lutherborrough what he had diagnosed that he was then told what it was he was suffering from and it was explained to him why he was given the acceptance and commitment therapy combined with exercise to help him get better. His evidence was that each of the sessions he had with Uplift Psychology went for about one hour or sometimes a little longer.

22. The Applicant told the Tribunal that Mr Lutherborrough did not suggest he take any leave from work and that he did not ask for a medical certificate. He stated that he had already had time off from work in November and had the Christmas period from mid-December until early January off in accordance with the shutdown of the project during that period. He could not recall taking any other leave after 24 November 2019.

23. The Applicant told the Tribunal that, when he enrolled in the Course in August 2019, he felt he was capable of completing it. He agreed that the course was an online course designed to allow students to demonstrate key learning objectives by documenting the knowledge and skills they had acquired in the workplace and supported by targeted research activities. The outline of the course showed that the expected student workload would consist of private study (research) of 130 hours, report writing of 180 hours and consultation with the student’s supervisor of 20 hours.[33]

    [33] Exhibit 1, T12, 80.

24. The Applicant was asked why he did not complete the course even when working fewer hours of work given his lighter duties.  He told the Tribunal that the subject was a two-point subject and therefore one of the most difficult subjects in the course overall and that his thinking capability at the time and his comprehension powers were affected by his mental stress condition. He was also unable to do research as a result of this stating:

    “I was able to look up something, but most of the time I wouldn’t understand what’s – I took long hours, long period of time to fully understand what I’m actually looking at. Or fully, that helps you to understand what my situation was at that time”.[34]

    [34] Transcript of proceedings, P-24.

25. The Applicant’s evidence was that he realised that he had not completed the unit when he arrived back from his overseas trip to Bangladesh which he took to assist his father to travel to India to receive treatment. He left Australia on 20 February 2020 and returned to Australia on 5 March 2020. He told the Tribunal when asked by the Respondent’s representative when he had realised that he hadn’t completed the Unit that;

    “Basically, I realised that after – when I came back from overseas, that time, I actually realised that, okay, I did enrol into a subject at that time and I did not complete the subject. Because that is the period of time that I have never experienced in my life, this kind of stress before of this kind of situation where you are actually trying to think and sometimes you’re going to places to get something and then you’re forgetting that (sic) why you are there.

26. The Applicant’s evidence was that once he had taken his father to India and back for treatment and he had returned himself to Australia he then realised that he had enrolled in a university subject and had completely forgotten about it. His statement to the Tribunal in evidence was that:

    “So, as soon as I felt a bit better, than (sic) I had to basically go and attend my father and mother back in Bangladesh. And when I came back, when sort off (sic) everything, okay, about the whole situation, then I realised that how there was a university subject that I enrolled and I totally forgot to do anything about it and it was too late for me to do.”

27. Further, the Applicant, when questioned as to why he didn’t mention going to Bangladesh to assist his parents and particularly his father when he lodged his Application for Withdrawal without Penalty Application, told the Tribunal that he and his wife had housing issues, his father had a bladder cyst that had been treated to the greatest extent possible in Bangladesh and that had called him away. He said that he simply forgot to put it in his application when he returned and in addition he was trying to beat the statutory time bar on lodging such an application.

28. The Applicant in his statement stated:

    Once my mental condition was stable, I realised that I did not complete my subject, ENG8308 Industry Project, which I enrolled for semester 3, 2019.I lost track of time and missed most of my commitments, during this period, and as a result I failed to withdraw before the census 06/12/2019. The whole situation was beyond my control as I was mentally not stable to focus on anything and continue any commitments.[35]

    [35] Exhibit 4.

29. The Applicant when asked by the Respondent what commitments he claimed he had missed through his losing track of time during the period of his mental stress issues, replied that regarding his study terms “basically I missed everything.”  The Applicant told the Tribunal that he couldn’t remember exactly the other commitments he had missed but said that there were unspecified work commitments in that category and the study commitments he could recollect.

30. The Applicant was asked about a screenshot the Applicant had provided and referenced as part of his Statement of Facts, Issues and Contentions.  The screenshot showed emails including a welcome to the beginning of semester 3 on 20 November 2019 and another sent on 2 December 2019 which spoke to the fact that the semester was now in week 3 and that the census date was close.  The Applicant told the Tribunal that he read none of these emails.[36]

    [36] Exhibit 3.

31. The Applicant’s evidence to the Tribunal regarding his attention to these email notices is in the following terms:

    “You didn’t notice that the university was emailing you about your enrolment in a semester 3 unit, including in relation to the upcoming census date?---No. As I said, like, I wasn’t looking at anything particularly like on my – I wasn’t checking my emails or anything at that time, I was just basically trying to get past that time.”

32. The evidence before the Tribunal indicated that the Applicant’s Review of Decision Request showed that the Applicant had applied twice previously to withdraw from units without penalty and had done so on one of those occasions.[37] When he was asked about this he agreed that he had done so.

    [37] Exhibit 1, T Documents, T10, 72.

33. The Applicant called two witnesses who provided letters and oral evidence in support of his contention that he was suffering from symptoms which could be interpreted as being indicative of his suffering stress related issues whilst he was in their individual company. The first of these witnesses was Sharia Shahtaz Pasha who had provided a letter of support for the Applicant.[38]  He told the Tribunal that around October and November 2019 he noticed that the Applicant would be disinterested and was distracted to the extent he was unable on occasion to focus on driving a motor vehicle properly, or to hold a polite conversation without arguing.  He stated that he understood the Applicant was having issues at work which were concerning him. Mr Pasha told the Tribunal that he went overseas for about one  month, returning in the third week of January 2020 and that the Applicant collected him from the airport upon his return.  He stated that it was about a month later that he noticed the Applicant had improved.

    [38] Exhibit 5.

34. Mr Pasha told the Respondent’s representative under cross examination that he observed that the Applicant was not in his right mind between November and mid-December 2019 before Mr Pasha left overseas. The Applicant spoke roughly and angrily, so Mr Pasha didn’t disturb him too much. He said he had dropped the Applicant to psychology sessions on a number of occasions and thus was aware that he was receiving treatment for his condition. He told the Tribunal that, because he had been a student, he considered that the condition of the Applicant when he was unable to focus would have adversely affected his studying ability as he too had to drop a number of subjects in the past.

35. Mr Pasha stated that he knew the Applicant was working throughout this time. Nonetheless, he stated that he noticed the Applicant had a lot of work piled up on his desk at home and he was in an angry mood. Mr Pasha said he did not discuss work or study with the Applicant as was trying to divert him from these things which seemed to upset him. He told the Tribunal that the Applicant enjoyed food and they would often dine out together but that the Applicant had lost his appetite and often wouldn’t eat his meal.

36. The second witness called by the Applicant was Mr Rokan Chowdhary who gave evidence that the Applicant had called him on several occasions around November 2019 regarding some work-related issues. He confirmed that he did not work with the Applicant but that they spent social time in each other’s company and that Mr Chowdhary attempted to provide some comfort to the Applicant as he was living away from his family and had work issues to contend with.

37. Mr Chowdhary’s letter of support stated inter alia: “Moreover, I observed that he was not in a good condition to continue any university level study which require (sic) logical thinking and fairly good amount of concentration”.[39] In his oral evidence to the Tribunal he stated that he had taught the Applicant AutoCAD computer aided design in 2018 and that as an electrical engineer himself he could understand the kind of mental capacity required to do a course of education such as the Applicant was doing. He said of the Applicant in November 2019 that he found the Applicant; “--- out of track to continue his education---”. The Respondent’s representative asked Mr Chowdhary if he had spoken to the Applicant then (in November) about his studies and the response from Mr Chowdhary was that he had and that the Applicant had told him he was a doing a course and he was supposed to do his last semester and that it was a most difficult course. Mr Chowdhary stated that he did not speak to the Applicant in detail about his course as the Applicant was not in a state that he could talk to him about his studies other than noting the fact that he was doing the course and had one semester to complete.

    [39] Exhibit 7.

    CONSIDERATION

38. The Tribunal accepts the evidence of the Applicant that he was suffering from a mental health condition, namely stress, from the effective date of diagnosis on the 6 November 2019 through to the 1 February 2020 as reported by his family doctor Walid Al-Bermani.[40]

    [40] Exhibit 1, T Documents, T1, 18.

39. The Tribunal, in order to establish whether the Applicant was indeed placed in such a situation as he claims to have been, needs to examine the historical evidence attaching to the circumstance as claimed and relied upon by the Applicant.

40. The Unit in which the Applicant enrolled on the 6 August 2019 was an advanced unit of the Master of Engineering Practice course that the Applicant had been pursuing since semester 2, 2014 as revealed by the Applicant’s unofficial copy of Academic transcript and results legend and glossary.[41] He had completed six of the seven units required to complete the course when he enrolled in the Unit in question. That record also reveals that on a previous occasion the Applicant had enrolled in another Master of Engineering Science course from semester 1, 2013 to semester 3, 2013. It is thus clear to the Tribunal that the Applicant was not a stranger to the university enrolment processes and requirements. The Tribunal notes also that the Applicant had subsequently re-enrolled again in the subject Unit for semester 2, 2020. It is further noted that it is recorded in the above document that the Applicant in relation to the earlier course, had also been failed in two of the Units for that course for non-participation. 

    [41] Exhibit 1, T Documents, T13, 82-93.

1. The Applicant also confirmed under cross examination that he had applied to withdraw from a unit previously but stated ---“That was like a long time ago, yes”.[42] The Tribunal accepts that this event is unrelated to the matter currently before the Tribunal but does however, go to the question of the Applicant’s familiarity with university requirements relating to such matters and the processes to set such a request in train. The University Academic transcript also reveals that the Applicant had, in fact, applied on two previous occasions for withdrawal without penalty and had been successful in one of those.

   [42] Transcript of proceedings, P-31.

2. The chronology of this matter is important to help map the activity of the Applicant throughout the relevant period from the date of enrolment on 6 August 2019 and subsequently to establish the capacity of the Applicant to manage his affairs.

3. The Tribunal notes that in the chronology of events, the Applicant consulted Dr Stamatios Ktenas a General Practitioner on the 4 November 2019 and received a certificate indicating that the Applicant was unfit for ‘work and school’ from 4 to 5 November 2019 and this was due to ‘medical reasons’. The Tribunal considers that the reference to ‘school’ in Dr Ktenas’ certificate could only apply to the Applicant’s university Unit at that time. On the 6 November 2019, the Applicant upon expiry of the medical certificate of Dr Ktenas, consulted with Dr Nan Gu a General Practitioner who started the Applicant on a Mental Health Care Plan and also referred the Applicant to Uplift Psychological Services for ‘opinion and management of stress form work under MHCP’ and the diagnosis was listed as ‘stress’.

4. During November the Applicant also continued to consult Gryphon Psychology under the EAP and did so in addition to the 12 November session again on the 18 November and then again on the 21 November 2019. The Tribunal notes that by coincidence the teaching period for the semester 3 commenced on the 18 November 2018 in accordance with the University of Southern Queensland’s outline of Important dates.[43] The Applicant went on leave at this time between the 8 November and the 24 of November 2019. He resumed work after this time with reduced hours at eight hours per day as agreed to with his employer while he was awaiting his appointment with the psychologist to whom he had been referred. He told the Tribunal that although he could have continued to access Gryphon Psychology he chose not to do so because he said the first session had been helpful but that after that he didn’t find the sessions helpful and he ceased going after the 21 November 2019 notwithstanding his continuing stress issue. This was clearly a conscious decision by the Applicant at this time not to proceed with the services of Gryphon Psychology even though his condition was still present. The Tribunal notes from his evidence to the Tribunal that the Applicant told his GP Dr Walid Al-Bermani in June 2020 that the sessions with Gryphon Psychology and Uplift Psychology had helped him get better as reported in Dr Al-Bermani’s certificate of the 27 September 2020.[44]

   [43] Exhibit 1, T Documents, T6, 63.

   [44] Transcript of proceedings, P-22; see also Exhibit 17.

5. The Applicant, as has been noted in his evidence to the Tribunal, said that when he enrolled for the Unit in question he had found out the census date, and had considered the dates of assessment and had looked at how they fitted in with his other commitments. He deposed to the fact that he had a discussion with his supervisor also around that time regarding the course however, he was unable to recall the exact content of the discussions. He acknowledged that the Unit was an online course and constituted the last subject he had to complete in order to have completed the full course. It was clear from the Applicant’s evidence that he was certainly familiar with the enrolment procedures and he also confirmed that he was well aware of the requirement  for students to accept responsibility for their course management as outlined in the USQ’s Enrolment Procedure document,[45] which stipulated that students are responsible for:

   “modifying their Enrolment when their circumstances make it unlikely that they can successfully undertake the study of a Course.”

   [45] Exhibit 1, T Documents, T5, 34.  See in particular ‘4.1 Student Responsibility’, at the fourth dot point.

6. Thus, it is clear to the Tribunal that, in relation to the Applicant’s enrolment and preparation to commence and fulfil the requirements of the Unit he had made himself familiar with all the necessary aspects.

7. The Applicant gave evidence to the Tribunal that he was so afflicted by his stress condition that he completely forgot all of these aspects about which he had appraised himself upon his enrolment. This was in spite of the fact that he was able to continue to engage with his employers on a day-to-day basis other than when he was taking his leave period between the 8 November 2019 and the 24 November 2019. Admittedly, he stated that he was working reduced hours upon his return to work insofar as those hours consisted of eight-hour days or forty hours per week. This was actually in accordance with his employment contract as confirmed by the Applicant’s evidence to the Tribunal in any event as it was stipulated that forty hours per week minimum was the contracted agreed working hours. In fact, the Applicant really only ceased working those extra hours that he had previously been working to meet deadlines and  those other exigencies which would arise from time to time on the project. It is clear on the evidence that the Applicant was still able to operate as a functioning employee at the time adding value by checking and verifying project documentation.

8. During the period through which the Applicant was receiving treatment, working and taking some leave, four significant dates relating to his course timetable were passed. These were the 18 November 2020 the date of commencement of the semester 3 teaching period, the 3 December 2019 the date for the submission of an assessment piece ‘Draft Progress Report’, the 6 December 2019 the census date for the Unit and, the 14 February 2020 the end of semester 3 and the date for submission of the piece of assessment known as ‘Final Report’. The evidence is that the Applicant had made no attempt to engage with the University in any manner to modify his enrolment or to discuss any difficulties he may have been having with his supervisor/teacher for the Unit. He in fact denied he had any knowledge of the dates and had not diarised the dates at the beginning of his course and had checked none of his emails which related to his course sent to him by the USQ and in any event was unable to effectively, remember he was doing the course.

9. The Applicant’s claim in this regard rings somewhat hollow given that when the representative for the Respondent was questioning him regarding the fact that he was able to keep working yet claimed he was unable to do the course, the Applicant was able to give a comprehensive overview of the intricacies and topics of the coursework. A telling aspect of the Applicant’s evidence in this regard is that he indicated that he had attempted the course work research as he stated that he would be looking at the (computer) screen and was unable to understand what he was looking at as his comprehension was compromised.

   ‘And I did not have that mental capability to do research, first of all, and the second thing is that, as I said, like I’m looking at the screen trying to understand what’s been presented in front of me and my comprehension level was quite severely affected.  I’m looking at, I’m reading, I’m reading as it is written, but I could not understand what I’m reading from time to time, during that time.  So, it was quite hard for me to basically do any of those work, because the first of all, my capabilities basically like, yes, my thinking capability, it’s basically went below the threshold and then the comprehension capability was severely affected.[46]

   [46] Transcript of proceedings, P-24.

10. The Applicant clearly realised at this time he was having difficulty with his ability to concentrate  on both his work obligations and the discipline to work the course. His own evidence to the Tribunal and his past history with the USQ enrolment procedures and process indicates that he was no stranger to the obligations he had to manage his enrolment, and at that point when he realised that his abilities were compromised, he was obliged to act and engage with USQ about his course enrolment by seeking assistance to manage the situation. It is the view of the Tribunal that the evidence indicates that his stress condition was under management by professional practitioners who he had voluntarily consulted and he had adjusted his work obligations to accommodate his changed circumstances but that his medical condition had not rendered him non compus mentis and thus unable to make a rational decision to address the issue of his continuation within the Unit. The Tribunal finds on the evidence presented that a reasonable person having knowledge of the Applicant’s circumstances at the time he was claiming to be so afflicted by stress as to render him incapable of continuing his course, could not come to the conclusion that he was so incapable of taking action to seek help from his course supervisor, or withdraw from the course, that the circumstances had moved beyond his control. The inaction of the Applicant to address the issue of managing his course was effectively the reason why he had failed to complete the subject Unit.

    Was the Applicant’s illness outside of his control and such that he could not complete his studies?

11. The Applicant contended that he was in such a state of mental turmoil that he was unable to think clearly, and could not remember that he had enrolled in the course.  It follows that, if the Tribunal accepts that was his state at the time, then it would also be that he was not of such a sound mind as to be able to complete his course. For the reasons that follow, the Tribunal rejects that the Applicant was in such a state.

12. The Tribunal acknowledges that mental illness may arise independently of a person’s control. Whether it does or not will inevitably require a close examination of the facts of a particular case. In this case, it was not suggested that the Applicant’s illness was brought about due to his own inaction, or that he in any way contributed to it.

13. However, it is not enough for the Applicant to merely demonstrate that he suffered from stress.  The Administration Guidelines require that the Tribunal give active consideration as to whether the circumstance of the illness was unusual, uncommon or abnormal.

14. The evidence before the Tribunal is that the Applicant was capable, at the time of his enrolment, of fulfilling the Unit course requirements. His subsequent illness no doubt had some impact upon him.

15. Nonetheless, it is a common occurrence for people in the workplace to suffer issues which may lead to a diagnosis of stress or other mental afflictions. The medical circumstances affecting the Applicant do not in the view of the Tribunal, constitute what could reasonably be defined as unusual. They are no doubt discomforting to the sufferer but they do not rise to such a level as required by the Administration Guidelines. The Tribunal does not accept that the Applicant was rendered into a state of mental incompetence whereby he was substantially or completely incapable of functioning so as to be unable to make rational decisions or that his memory was so affected. He continued to work a forty-hour week.  He continued to catch airline flights to and from the home to the worksite, and functioned socially (albeit with a degree of gauche behaviour) as reported by his friends who provided evidence to the Tribunal.

16. The Applicant’s own witnesses whom he called to attest to their knowledge of his condition in and around November 2019 indicated in their affirmed evidence to the Tribunal that the Applicant was still carrying out general functions in a relatively normal way with them whilst in their company. His mood at times was argumentative and he was behaving in a somewhat preoccupied fashion, but he still was able to complete tasks. Mr Pasha told the Tribunal that he would drop the Applicant to his doctor’s appointments, would hang out with him and had gone for a drive in a car the hiring of which was organised by the Applicant and collected by Mr Pasha. Mr Pasha’s recollection was that the Applicant when he went to pick him up in the car was not able to drive the vehicle very well.

17. Mr Pasha told the Tribunal he had gone overseas between mid-December 2019 and had returned in the third week of January that the Applicant had picked him up from the airport in Mr Pasha’s own vehicle. Mr Pasha’s evidence was that the Applicant would get him to drive him to his medical appointments on a number of occasions at Botany Medical and Uplift Psychology.

18. Mr Pasha also told the Tribunal that he knew the Applicant was working through October, November and December because he would on occasions, pick up the Applicant from work at times varying from 5.00pm to 6.30 pm. He stated to the tribunal that he didn’t consider the Applicant was capable of studying but told the Tribunal that he hadn’t discussed the studies with him. The Tribunal finds that this would be highly unlikely given the close social contact that the parties had on a weekly basis.

19. Mr Pasha gave evidence that he knew that the Applicant was attending psychological counselling appointments regularly and had work issues which the Applicant had shared with him. His evidence does serve to indicate the Applicant’s abilities to make everyday rational decisions to perform work functions, make medical appointments, arrange the hiring of a motor vehicle and have Mr Pasha collect it for them to go for a drive and to socialise generally. In those circumstances, whatever the level of stress that the Applicant was suffering, those circumstances cannot rise to such a level as to meet the high bar that the Administration Guidelines impose.

20. It may well have been the case that the Applicant may have been in an argumentative mood and angry at times and perhaps distracted. However, Mr Pasha’s evidence does not serve to reveal a person in such a state of mental inability that they would completely forget that they were enrolled in a university course at that time. The Tribunal rejects that the Applicant did so.

21. Mr Rokan Chowdhary was the second of the witnesses called by the Applicant to attest to their view of his condition at the relevant time. He told the Tribunal that he had known the Applicant for about 15 or 20 years as they both had worked in the construction industry. Mr Chowdhary told the Tribunal that he knew the Applicant had issues at work and that they were affecting him to the extent that he was very argumentative, depressed and lacked focus in his conversation with him. He also stated that the Applicant was not eating well when they dined together at their favourite restaurant. He told the Tribunal under cross examination by the Respondent’s representative that in November he found the Applicant “out of track to continue his education".[47] It is clear that the Applicant discussed his university course with Mr Chowdhary around the time in question albeit not in an in-depth manner. The following exchange between the Respondent’s representative and Mr Chowdhary bears witness to this:

    You said in your statement that you thought that he was not in a good condition continue any university study.  What made you say that?---Yes, because, like, you know what, I just told you that I had to teach him AutoCAD, it’s a computer-aided design, back in 2108.  And I myself, electrical engineer, so I understand what kind of mental capacity necessary for this kind of education.  And so when I see him in November I found him out of track to continue his education ‑ ‑ ‑ 

    Did you ever speak to him about his studies then?---Yes.  He told me that he was doing (indistinct) in Queensland University of Technology, I think, and he was supposed to do his last semester (indistinct) something course.  And it’s a most difficult course.

    Did you speak to him about that at that time?---Not at that time.  I say I know what he was going through, but I don’t have any - there’s no option for talk to him in that - is a more, I think, out of context on that time, because he couldn’t even focus on his day-to-day activities.  How can I talk to him about his study?

    No, but did you know at that time, though, that he was enrolled to do that study?---I know that he was doing the study during that time, but I’m not sure where he was, but he told me that he only had one semester left.

    [47] Transcript of proceedings, P-44.

22. So far as the evidence of Mr Chowdhary is concerned it provides no more assistance to the Tribunal regarding the Applicant’s stress condition than does that of Mr Pasha. It does however, indicate that the Applicant was, notwithstanding his stress condition, had informed his colleague of the existence of his university course, indicating that the Applicant’s contention that he had completely forgotten that he was enrolled in such a course was not likely to be credible.

23. The Applicant was treated by Mr Alex Lutherborrough a psychologist from 14 December 2019 for six sessions up until the 1 February 2020. Mr Lutherborrough’s letter of 29 August 2020 stated that he had treated the Applicant as indicated above and that he had presented on the initial consultation and that his ‘mental condition was quite severe’, but that by

    
    

    1 February 2020 the Applicant ‘reported improvement in symptoms’. Although in that letter Mr Lutherborrough also states that; ‘These factors would have affected Mohammad’s mental health severely and any studies he was undertaking at the time’ he makes no claim that the Applicant’s condition would have rendered him unable to complete his studies. Further, the Applicant in his evidence under cross examination regarding his sessions with Mr Lutherborrough, stated when asked did he speak to Mr Lutherborrough about his studies replied “Not that I remember”. If that was so, then it is curious that the topic of his studies appeared in the post event letter from Mr Lutherborrough.

24. The Tribunal considers that the Applicant, although stressed, was still able to make rational choices and was capable of continuing his studies. It is not the case that his failure to complete the course was as a result of his illness – the evidence outlined above demonstrates that.  Similarly, his failure to withdraw from the course was not caused by his illness.  The Tribunal finds in regard to the Applicant’s condition that it was not unmanageable or immutable.  The Applicant could have acted but did not.

    The Family Circumstances

25. The Applicant also advanced facts which indicated a further circumstance, that being the  illness of  his parents.  The illness was such that he travelled in February 2020 trip to Bangladesh and India to support his parents. Though the Tribunal accepts that the ailments of his parents were beyond his control, that circumstance does not assist him. The ailments were of a common nature about which the Tribunal has no professional medical evidence before it other than their type namely, a cyst in the bladder with his father and varicose veins with his mother, both of which were it seems, resolved satisfactorily with treatment. They were not particularly exceptional or noteworthy, and thus in the view of the Tribunal, could not be considered unusual, abnormal or uncommon.

26. Moreover, the Tribunal notes that the Applicant left Australia after the course had concluded. For the Applicant to be successful on this ground, he would be required to demonstrate that his stress had increased as a result of his parents illness – he could not rely on the need to travel outside of the country to support the ground. The material before the Tribunal stands against the proposition that the Applicant’s mental state was worse at that time. Mr Lutherborrough’s letter referred to above indicates that the Applicant reported improvement in his symptoms from 14 December 2019 until the last session on 1 February 2020. Even if the Applicant’s stress affected him after 1 February 2020, there is nothing before the Tribunal to substantiate that.  The Tribunal therefore cannot be satisfied that special circumstances applied with respect to those circumstances.

    Did the impact of the Applicant’s illness make its full impact known on or after the census date for the Unit?

1. Even if the Tribunal had been satisfied that the Applicant’s stress condition was beyond his control, the impact of his illness was known to the Applicant before the census date. The evidence before the Tribunal is that the Applicant’s stress condition had arisen before the commencement date for the Unit namely, the 18 November 2019 and certainly before the census date on the 6 December 2019. In fact, the Applicant’s condition had been developing since before the first medical attention was sought by him on 4 November 2019 from Dr Ktenas.

2. The Tribunal has also considered the question as it is required to do as to whether the Applicant’s condition or circumstance made its full impact on him as at or after the census date. This requires the Tribunal to examine the circumstances and be satisfied that the Applicant’s circumstance existed prior to the census date and worsened after that date or, worsened before the census date but the maximum effects and or expanse of the circumstance were not fully manifested until on or after that date.

3. The evidence available to the Tribunal is that once he had commenced treatment, the Applicant’s condition did not become worse. In fact, he is reported by both Dr Al-Bermani and Mr Lutherborrough to be improved in his mental health condition by the 1 February 2020 the medical and psychological evidence indicates that no change in or worsening of symptoms had occurred from the commencement of treatment. This is supported by the fact that the Applicant continued his normal functions regarding work commitments, travelled back and forth between Queensland and New South Wales and attended to his program of treatment in a persistent and proactive manner. Also, other than for the Christmas holiday shut down of the work site, the Applicant took no other leave associated with this condition from work.

4. It is clear to the Tribunal that the stressors leading to the Applicant’s condition were evident in early November and the events contributing to those stressors had been in evidence for a significant period of time prior to the Applicant’s consultation with Dr Ktenas on the 4 November 2019. They were certainly in existence before the commencement of semester 3 on the 18 November 2019 and prior to the census date on the 6 December 2019. The Applicant in the opinion of the Tribunal could not but have been aware of them before this time. The evidence before the Tribunal is that the Applicant’s condition was worse at the time he began treatment and improved up until the 1 February 2020. He suffered the full impact of his condition well before the census date and not on or after the census date. The Tribunal has also taken into account the fact that the Applicant after the 24 November 2019 did not take any further leave associated with his stress condition and continued to work in his role up until the Christmas shut down. The Tribunal is therefore satisfied that the Applicant’s condition could not be said to have manifested its full force and impact upon the Applicant at or after the census date of the 6 December 2019 and nor did they worsen after that date the Applicant is therefore unable to satisfy the requirements of paragraph 36(21)(b) of the Act.

5. It is therefore the decision of the Tribunal that in consideration of the evidence before it the Applicant is unable to establish that paragraph 36-20(1)(d) and section 36-21 apply to him in relation to the Unit and the decision therefore must be affirmed.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

.....................[SGD]...................................................

Associate

Dated: 15 October 2021

Date of hearing:	19 March 2021
Applicant:	Self-represented
Respondent’s Solicitor	Ms Katherine Cooke HWL Ebsworth