Sapkota and Secretary, Department of Education

[2020] AATA 61

Sapkota and Secretary, Department of Education [2020] AATA 61 (17 January 2020)

Division:General Division

File Number(s):2018/6112      

Re:Binod Sapkota

APPLICANT

Secretary, Department of EducationAnd  

RESPONDENT

DECISION

Tribunal:Dr N A Manetta, Senior Member

Date:17 January 2020  

Place:Adelaide

The Tribunal affirms the decision under review.

.......................[sgnd].....................................

Dr N A Manetta, Senior Member

Catchwords

HIGHER EDUCATION –– VET FEE-HELP Assistance Scheme –– application for remission of VET FEE-HELP debt – special circumstances – whether circumstances made their full impact on the applicant until on or after the census date – where circumstances relied on by the applicant made their full impact on the applicant before the census date – decision under review affirmed.

Legislation

Higher Education Support Act 2003

REASONS FOR DECISION

1. This is an application by Mr Binod Sapkota seeking a review of a decision taken on behalf of the Respondent to reject his application for a recrediting of his “FEE-HELP” loan account with the Commonwealth because there were no “special circumstances” justifying a recrediting.  At the hearing before me, Mr Sapkota represented himself; Ms Ervin appeared for the Respondent.

2. Hearing the matter afresh, I must decide whether the correct or preferable decision on the evidence before me is to recredit Mr Sapkota’s account, or whether it is appropriate to affirm the decision under review. I have decided that it is appropriate to affirm the decision under review.  I set out below the essential background facts and my reasons for this conclusion. As Mr Sapkota was not legally represented, I shall express myself as plainly as possible, and I shall avoid the extensive quotation of legal provisions.

   BACKGROUND FACTS

3. Mr Sapkota was born in Nepal in 1985 and emigrated to Australia in 2009 with his wife.  He settled in Adelaide about a year ago; before that, he lived in Sydney, Brisbane, and Darwin. He was living in Darwin at the time that is relevant to the application before me.

4. In 2017 Mr Sapkota took a decision to change his career.   He decided to enrol in an online course with Torrens University.  The course would lead to an Associate Degree of Business (Tourism Management).   Mr Sapkota wished to commence studies in the second half of 2017, and he formally enrolled in the degree programme with effect from 19 September 2017.  He decided to take two subjects in 2017: Introduction to Tourism, Hospitality and Events and Understanding People and Organisations. 

5. The course entailed significant fees.  Mr Sapkota took out a loan to assist him to meet the fees.  The loan was advanced to him by the Commonwealth and is known as a “FEE- HELP” loan. 

6. There was a so-called “census date” specified in relation to the two subjects in which Mr Sapkota had enrolled. This date was 6 October 2017.  The date is important because a withdrawal by this date would have relieved Mr Sapkota of the obligation to pay the subject fees; but Mr Sapkota would remain liable for the fees if he withdrew after the date (unless “special circumstances” existed).  The census date followed soon after the commencement of term.  The intention, I infer, was to encourage students to make up their minds quickly whether they wished to continue with their subjects (because after the census date they would lose their unqualified right to a refund).

7. At the time of his enrolment, Mr Sapkota was working full-time, and, in addition, he worked casually to supplement his income.  He also had family responsibilities as the father of a baby.  His wife was not working at the time.  Money was tight and his life was no doubt stressful. 

8. Mr Sapkota began his subjects in September 2017 with good intentions, but he quickly fell behind.  He did not submit assignments or have time to attend to the study requirements of the subjects. As I understand matters, just after the census date, Mr Sapkota’s loan account was debited with the fees charged by Torrens University in respect of the two subjects.  In the event, Mr Sapkota withdrew from the course entirely after the census date.  His application for withdrawal was submitted in November 2017, well after the census date of 6 October.  His subsequent application for a recrediting of the loan account was rejected because no “special circumstances” were fund to be applicable in his case.

   REASONS

9. As Mr Sapkota’s withdrawal occurred after the census date, section 105–25(1)(c) of the Higher Education Support Act 2003 is relevant.  It provides that a loan account will be recredited only where the higher education provider is satisfied that “special circumstances” apply.  Section 104–30(1) provides that for these purposes “special circumstances” are taken to exist if, and only if, the circumstances: (a) are beyond a person’s control, (b) do not make their full impact on the person until on or after the census date, and (c) make it impracticable for the person to complete the subjects during which the person undertook the subjects.

10. These requirements stipulate that Mr Sapkota’s special circumstances (if they arose after the census date) must have prevented him from completing the subjects.   In the case of circumstances in existence before the census date, Mr Sapkota must demonstrate some additional impact that only occurred on or after the census date and that prevented him from completing the subjects.

11. Mr Sapkota asked me to take into account the circumstance that he suffers from diabetes. I am not satisfied that Mr Sapkota’s diabetes was responsible for his failure to complete the subjects in question.  The evidence suggests that this condition was not a significant impediment in Mr Sapkota’s life.  At the time of his enrolment, Mr Sapkota was a very busy and highly active person who had multiple work responsibilities that his diabetes did not prevent him from fulfilling.  I do not believe Mr Sapkota’s diabetes prevented him from completing the subjects in which he had enrolled.  Rather, Mr Sapkota fell behind in the subjects because he had insufficient time to devote to them given his other commitments. 

12. In any event, his diabetes had been diagnosed well before the commencement of the degree[1] and I am not satisfied that it became substantially worse on or after the census date. 

    [1] Ex R1 at p 90.

13. Mr Sapkota also submitted that he was also carrying high debts at the time and was finding it difficult to cope with his overall circumstances. Although Mr Sapkota maintained that he was stressed and depressed, I do find that he was sufficiently well to plan a change in his career, to investigate courses, and to take active steps to enrol in the Torrens University degree.  I do not doubt that Mr Sapkota’s circumstances were overall difficult and pressured; but at the time of his enrolment he was confident enough that he could manage the degree.  My conclusion is that Mr Sapkota was unable to complete the subject requirements because of an underestimation by him of the significance of his other commitments and how they would impinge on his available time, and not because of any stress or depression he felt.  In any event, the stressors in his life and his overall lack of wellbeing did not become appreciably worse on or after the census date in my opinion.  

14. So far as Mr Sapkota’s work circumstances are concerned, I need only note that they did not worsen appreciably on or after the census date.  They directly impacted Mr Sapkota’s ability to attend to the subjects from the outset.  In addition, they are probably not a matter that can be said to be “beyond his control” as required by s 104–30(1)(a).

15. In the circumstances, my conclusion is that Mr Sapkota has not demonstrated “special circumstances”.

16. I have considerable sympathy for Mr Sapkota. In hindsight, his decision to enrol in the course was a poor one.  He was always going to struggle, and it is unfortunate that he did not think his way through his subject commitments well enough before he decided to enrol.  In addition, Mr Sapkota ought to have withdrawn before the census date and as soon as it became clear he had insufficient time to study.  Unfortunately for him, his case falls outside the concept of “special circumstances”, which he must demonstrate in order to have the decision under review set aside.   

    FORMAL DECISION

17. The decision under review will be affirmed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for the decision herein of

Dr N A Manetta, Senior Member.

........................[sgnd].............................

Administrative Assistant Legal

Dated: 17 January 2020

Date of hearing:	8 November 2019
Applicant:	In person
Respondent’s representative:	Ms. K Ervin, Maddocks Lawyers