Schiebaan and Secretary, Department of Education

Schiebaan and Secretary, Department of Education [2020] AATA 1305 (14 May 2020)
Division:GENERAL DIVISION
File Number: 2019/4932
Re:Bart Schiebaan
APPLICANT

AndSecretary, Department of Education
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:14 May 2020
Place:Sydney

The decision under review is affirmed.
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Mr S Evans, Member
CATCHWORDS
HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for remission – special circumstances – whether circumstances beyond applicant’s control – whether circumstances made their full impact on or after the census date – whether impracticable for applicant to complete the unit requirements – Tribunal does not find special circumstances – decision under review affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 101-1, 104-1, 104-25, 104-30, 107-1, 107-5, 206-1, 209–10, 212-1, 238-10
SECONDARY MATERIALS
Administration Guidelines 2012, ch 3
REASONS FOR DECISION
Mr S Evans, Member
14 May 2020

Bart Schiebaan (“the Applicant”) was enrolled in a Graduate Diploma of Psychological Science at the Australian College of Applied Psychology (“ACAP”) in Sydney. He obtained financial assistance for his study through a FEE-HELP loan.
The Applicant withdrew from two units of study and ACAP declined to re-credit the FEE-HELP for those units of study as withdrawal was after the census date. The Applicant applied for consideration of special circumstances and on 26 July 2019, ACAP again declined to re-credit the FEE-HELP for those units of study. The decision was affirmed by two subsequent internal reviews by ACAP. The Applicant now appeals to the Administrative Appeals Tribunal (“the Tribunal”).
INTRODUCTION
FEE-HELP loans provide financial assistance to students to pay for tuition fees for units of study that are not supported by the Commonwealth. When a student takes out a FEE-HELP loan, the government pays the loan amount directly to the student’s university or approved provider in payment of the student’s tuition fees. The loan amount becomes a debt to the Commonwealth to be repaid through the taxation system when the student’s income exceeds the compulsory repayment threshold.
The FEE-HELP scheme is administered by the Department of Education. As the debt is owed to the Commonwealth, not ACAP, the Respondent is the Secretary of the Department of Education.
The matter was heard on 26 March 2020. Both the Applicant and Respondent appeared by telephone.
The Tribunal has before it documents submitted by the Secretary under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the T-documents”). Before the Tribunal are documents relating to the Applicant’s interactions with ACAP including email exchanges between the Applicant and ACAP and a record of outbound phone calls made by the Applicant. The Secretary has provided a statement of facts, issues and contentions together with a chronology of relevant events.
For the reasons which follow, the decision under review will be affirmed.
ISSUES
The issue before the Tribunal is whether “special circumstances” apply to Mr Schiebaan so that his FEE-HELP debt should be remitted, that is:
(a)whether he was affected by circumstances beyond his control; and
(b)whether these circumstances did not make their full impact on him until after the census date for his units; and
(c)whether it was impracticable for him to complete the requirements of the course.
LEGISLATION AND GUIDELINES
The relevant legislation in this matter is the Higher Education Support Act 2003 (Cth) (“the Act”).
Section 101–1 sets out the requirements so that a student may be entitled to FEE-HELP assistance for study for which the student is not Commonwealth supported, if certain requirements are met. Section 104–1 of the Act sets out conditions governing entitlement to FEE-HELP. A student who receives FEE-HELP has payment made for their tuition fees less any payments made by the student (or another party) (sections 107–1, 107–5).
Section 104–25 provides that a higher education provider must, on the Secretary’s behalf, re-credit the student’s FEE-HELP balance for a unit where the person has not completed the unit, has applied for re-crediting, and (in paragraph 104–25(1)(c)) special circumstances apply to the person. The meaning of “special circumstances” is elaborated in subsection 104–30(1), which specifies:
(1) For the purposes of paragraphs 104‑1A(2)(b) and 104‑25(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application 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 in question; and
(c)make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake the unit.
(2) If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36‑21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Section 238–10 of the Act allows the Minister to make guidelines by legislative instrument for various purposes covered by the Act. The listed guidelines that may be made include Administration Guidelines 2012 (“the Administration Guidelines”).
Relevantly, Chapter 3 of the Administration Guidelines deals with “special circumstances” as follows:
3.1      PURPOSE
3.1.1The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:
(a)are beyond the person’s control (paragraph 36-21(1)(a) of the Act);
(b)do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 36-21(1)(b) of the Act); 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 (paragraph 36-21(1)(c) of the Act).
3.5      CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1A 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.
3.5.5The 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
3.15.1 A 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
complete any other course requirements because of their inability to meet (a), (b) and (c) above.
Part 5-7 of the Act provides for review of decisions. Section 206–1 provides that a decision to refuse re-crediting of a person’s FEE-HELP balance is a reviewable decision. Section 209–10 requires that if a person affected by a reviewable decision requests reconsideration of a reviewable decision, the reviewer must reconsider the decision and confirm it, vary it or set it aside. Section 212–1 provides for application to this tribunal for review of a decision confirmed, varied or set aside under section 209–10.
EVIDENCE AND FACTS
On 15 August 2017, the Applicant enrolled to study a Graduate Diploma of Psychological Science at ACAP. He had already completed three subjects of his degree at the beginning of 2019 when he entered his second year of study.
The Applicant was enrolled in the following units of study:
1PSYC5212 Psychology: An Evidence-Based Approach 2 Advanced
2PSYC5232 Learning and Memory Advanced
The trimester began on 4 February 2019 and the census date for each unit was 22 February 2019. The tuition fee for each unit was $2,229.00 so that together the fees came to $4,458.00. That is the amount that was added to the Applicant’s FEE-HELP balance.
At this time the Applicant was working full time and he moved from Sydney to Newcastle. Relocating to Newcastle meant he was unable to attend the tutorials on campus but planned to participate in the online tutorials provided by ACAP.
The Applicant told the Tribunal that he tried the online tutorials and did not find them satisfactory. He said that the screen would go blank and students would talk over each other. On 11 February 2019, he sent an email to the ACAP Help Desk asking how he could unenroll from the units of study.
The Applicant submits that students had been told that if they call and leave a message for ACAP staff, they should not call back but wait until they are called back. Similarly with emails, ACAP students are advised to email and wait for a reply and not to send further follow up emails. Students, he submits, were explicitly told that someone would get back to them. The Applicant said he understood the rationale for this policy and indicated that he respected it.
The Applicant wanted to discuss the tutorials with a lecturer at ACAP who he had previously interacted with, Dr Gabriel Tillman.
Before the Tribunal is a log of calls which indicate that Mr Schiebaan did call ACAP on two occasions. He called on 12 February 2019 for 33 seconds and on 13 February 2019 for 12 seconds. He contends that he left messages but did not receive a call back.
Another online tutorial was scheduled for the Monday after census date and the Applicant decided to attend the online session scheduled to see if it was any better than his previous tutorials. He found that the tutorial was again unsatisfactory so decided that he would withdraw from the units.
On 26 February 2019, he sent an email to ACAP requesting to withdraw from the units of study.
On the same day, he received an email back from ACAP which stated that as census date had passed, he would have to complete a post census withdrawal form and that “students who withdraw from a unit or module after the approved census date will be liable for the full tuition fees”.
On 28 February 2019, Mr Schiebaan was sent an email by the Student Services Advisor which stated that census date was 22 February 2019 and “dropping units was possible on the portal up until this day”. He was also provided the link to appeal for special circumstances.
On the same day, the Applicant submitted an application for consideration of special circumstances in which he identifies the “failure of ACAP staff to return calls … and serious concerns about the quality of teaching”.
On 26 July 2019, the Applicant was sent notice that his application for special circumstances consideration had been declined. The Applicant provides further information, being his phone records, and seeks an appeal of the decision.
On 9 August 2019, the Applicant received correspondence from ACAP’s commercial finance manager with the outcome of his appeal for the application of special circumstances. The correspondence stated that ACAP has found no evidence of pre-census withdrawal as per college policy. Further it is written:
The additional evidence you have provided a phone records of two calls made pre-census to the course coordinator. As per college policy, a student must withdraw in writing to the college or complete an online withdrawal form pre-census.
As a result of this finding, his grade for the units he was enrolled in was listed as fail and/or withdrawn-fail. The Applicant was advised that he had a right to appeal the decision to the Administrative Appeals Tribunal.
A letter from 12 August 2019 to the Applicant, from the financial compliance manager at ACAP, notes that the Applicant:
[has] previously gone through the withdrawal process in T2 2018 (15th June 2018) when you deferred Post Census via completing an online form. As you had not withdrawn before the census date as per College Policy and Fee Help Policy in T1 2019 you remain liable for your tuition fees.
Unfortunately this is not an outcome that you had foreseen, however we can only base our decision of the evidence supplied and investigated during this process”.
The arguments of the parties
The Applicant contends that if ACAP had returned his phone calls, the situation could have been avoided. He says he wanted to discuss his options in the weeks leading up to the census date but that ACAP did not return his calls, even though they “promise” to return all calls.
He writes in his reasons for applying for review that in the period leading up to the census date he was “having a great deal of trouble adapting to their online course/tutorials and wanted to discuss my options”.He indicates that he was reluctant to withdraw:
As I had not heard back from ACAP during the census week I tried desperately, and ultimately in vain, to motivate once more for the Monday night tutorials, and Wednesday lectures the following week but it was not a good experience at all so I then decided to withdraw.
The Secretary argues that the Applicant was aware of his responsibilities and the importance of withdrawing prior to the census date. Students can withdraw without penalty prior to the census date. The census date, it was argued, is well published and communicated.
Further, the test for special circumstances is narrow with a high threshold of cumulative requirements that are not met by the Applicant.
CONSIDERATION
At the hearing, the Applicant confirmed that he was aware of the census date and its significance. He also confirmed that he had received a copy of the handbook which set out a process for withdrawal but indicated he did not read it.
He contends that there were problems with the ACAP website in terms of his ability to withdraw which is why on 11 February 2019, he emailed the ACAP Help Desk asking how he could unenroll.
The Applicant made a phone call to Dr Gabriel Tillman on 12 February 2019, a day after sending the email to the help desk, and again on 13 February. He says he was calling Dr Tillman to discuss what his options were in relation to the course.
The Applicant confirmed that he made up his mind to withdraw after the Monday afternoon tutorial course when he had given it one last chance and that he then sent ACAP an email confirming his withdrawal on 26 February 2019.
He said that he didn’t withdraw prior to the census date because he was working full-time. He had completed the first three subjects over two trimesters, and it was only after establishing that studying online was not working well that he had considered withdrawing. He testified that he went to two subjects at once, one per week and ended up doing two or three online courses prior to the census date and that they deteriorated in quality. He also writes:
…the extenuating circumstances to me was… as a result of ACAPs lack of action and failure upon their own promise, to return their calls. Each course co-ordinator instructs at their first lecture that students should leave a single message/email, and the course co-ordinator WILL get back to them that week…
[ACAP] are claiming that their ‘Special Circumstances Policy’ is somehow ‘explicit’ in that the extenuating circumstance HAD to occur ‘after census’ date – however in my case IT DID but must take into account their at fault prior to census date – the tow moments are directly linked, that IS my extenuating circumstance – without their ‘at fault’ it would never have got to a post census date withdrawal – the ‘history’ of the extenuating circumstance must of course be taken into account.
Prior to withdrawing from the courses, the Applicant said he was having a very busy week. Census date was on Friday, 22 February 2019 and on the following Monday, he was feeling flat. He did not receive a call back from ACAP and says that he was not motivated.
Were the circumstances beyond the Applicant’s control?
In order to satisfy paragraph 104-30(1)(a) of the Act, the Applicant must demonstrate that the reasons he withdrew after census date were outside of his control.
The Applicant submits that ACAP failed to return his calls in a timely manner, but the Respondent points out that he could have taken proactive steps prior to the census date and notes that the FEE-HELP booklet clearly places the onus on students to complete the provider’s formal withdrawal process. In relation to the Applicant’s assertion that ACAP requested students not to leave multiple messages or email as all enquiries will be responded to, the Respondent states that the course outline stipulates that “general questions for the unit co-ordinators about unit content and assessment… must be sent through the unit of study Discussion Board”. The unit co-ordinator was obligated to respond to questions posted on the unit discussion board twice each working week.
The Guidelines state that in addition to being beyond the student’s control, the circumstances must be unusual, uncommon or abnormal. Whist it may be argued that a failure to return two phone calls and two emails shows a disregard for student services, it is not unusual, uncommon or abnormal.
Did the circumstances make their full impact on or after the census date?
The Applicant contends that he was dissatisfied with the quality of the online teaching prior to the census date. His first recorded contact in relation to his concerns was 11 February 2019, ten days prior to census date, when he sent an email to ACAP asking how to unenroll from subjects.
He states later, in his Application for Special Circumstances dated 28 February 2019, that “[t]he online tutoring has got worse each week. I was trying to persist but the final Monday (25/2) was just terrible. I do not want to continue with this course, the structure, format, content + teaching ability [was] not for me”.

The Applicant concedes that his issues with the course were evident in the weeks prior to census. He indicates that attending a final tutoring class only served to confirm what he knew prior to census, that he did not wish to continue with the course.
The Applicant submits that the quality issues became worse “each week”. It is conceivable that the full implications of the circumstances were not known to the Applicant prior to census; but in this case, I accept that they were. The Applicant has not identified any additional issues or specific problems with the online tutorials which he became aware of after the census date. His evidence indicates that the final class confirmed what he had already determined before the census date.
Did the circumstances make it impractical for the Applicant to complete his study requirements?
The Applicant’s difficulties with his study refer to issues which may well have made it more difficult to succeed and get the most educational value out of his studies. Even if there are legitimate quality issues, these are outside the scope of what is being considered by the Tribunal. His only requirement in order to complete his study was to attend the online tutorials, which he has conceded he was able to do.
CONCLUSION
Whilst the management of enrolment and withdrawal from units is the student’s responsibility, it is not difficult to understand why the Applicant would perceive he had been poorly treated by ACAP. The email he sent requesting details on how to unenroll might be expected to elicit a prompt response. The tone and nature of the email would have been expected to indicate to most readers that the Applicant was dissatisfied with the course and the email reads like a request for help. In considering the documentation, it appears that ACAP did not respond to his calls and emails until after the census date, by which time it was too late to withdraw without incurring a FEE-HELP debt.
At the hearing, the Applicant expressed concern for other students who might find themselves in a similar situation. Noting his altruistic concerns, it is only open for this Tribunal to consider his application for special circumstances.
The requirements to meet the special circumstances threshold are cumulative and as noted by the Respondent require meeting a high threshold based on a narrow set of criteria. The evidence supports a conclusion that the Applicant was aware of the circumstances, being the quality of online teaching, prior to the census date. Further, he could have withdrawn prior to census, but chose not to, instead preferring to see if the online tutorial had improved. Finally, he was able to meet the requirements of the course, but not in a manner which was to his satisfaction.
As the Applicant does not satisfy the requirements of section 104-25 of the Act, he is not entitled to have his FEE-HELP debt re-credited.
DECISION
The decision under review is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 14 May 2020

Date of hearing:
26 March 2020

Applicant: In person

Solicitors for the Respondent: HWL Ebsworth Lawyers
Click here to enter decision.

[2020] AATA 1305

14 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Standing

Statutory Construction

Date of hearing:	26 March 2020
Applicant:	In person
Solicitors for the Respondent:	HWL Ebsworth Lawyers