Sharif and Secretary, Department of Education
[2024] AATA 3185
•14 August 2024
Sharif and Secretary, Department of Education [2024] AATA 3185 (14 August 2024)
Division:GENERAL DIVISION
File Number(s): 2024/0469
Re:Ahmed Sharif
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Mr A. Maryniak KC, Member
Date:14 August 2024
Date of written reasons: 6 September 2024
Place:Melbourne
The Tribunal affirms the reviewable decision.
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Mr A. Maryniak KC, Member
Catchwords
EDUCATION – HECS-HELP – debt remission application – Higher Education Support Act 2003 – special circumstances – whether circumstances existed preventing the Applicant from making an application in the relevant period – Tribunal not satisfied such circumstances existed – reviewable decision affirmed.
Legislation
Higher Education Support Act 2003 (Cth)
Cases
Vandenberk and Secretary, Department of Education [2024] AATA 1668
REASONS FOR DECISION
Mr A. Maryniak KC, Member
6 September 2024
At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.
The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
An extract of the edited transcript is Annexure “A” hereunto and furnished for the Applicant and to the Respondent.
4. I certify that the following 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member
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Associate
Dated: 6 September 2024
Date of hearing: 14 August 2024 Applicant: Self-represented Advocate for the Respondent: Ms Kristina Mihalic Solicitors for the Respondent: HWL Ebsworth
ANNEXURE A
The Applicant seeks review of an 8 June 2023 decision affirming an earlier decision of 6 January 2023 which declined to remit the Applicant’s HECS-HELP debt for four units in semester 1 of 2013, and three units in semester 2 of 2013 of a Bachelor of Business at Victoria University. The Applicant did not apply for remission of the debt until 20 January 2022, approximately eight years after the relevant units were enrolled for. This review is de novo.
The Tribunal has considered the T-Documents which importantly contained various statutory declarations and emails from the Applicant, and the written statement from the Applicant dated 13 May 2024, together with the testimony of the Applicant during the hearing.
HECS-HELP assistance is provided pursuant to Chapter 3 of the Higher Education Support Act 2003 (Cth) (‘the Act’). As indicated during the hearing, the threshold or preliminary issue for determination is whether the Tribunal, standing in the shoes of a decision maker, should waive the requirement that any remission application should have been made within a 12-month period. In conjunction with subparagraph 36-20(1)(f)(i) in Part 2-2, Division 36 of the Act, being the pre-requisite to any education provider repaying any HECS-HELP amount where there was no enrolment withdrawal.
Subparagraph 36-22(2) imposes a statutory 12-month time limit on any such remission application. That period is to run from the end date of the relevant unit and semester. As indicated during the hearing, the two key dates are within 12 months of 22 June 2013 for Semester 1 units and 16 November 2013 for semester 2 units. The Tribunal is to determine whether it was not possible for the Applicant to make the application before 22 June 2014 and 16 November 2014 respectively.
In summary, the Applicant submits that the statutory period should be waived because he was not aware of the HECS-HELP debt and was out of the country, and or unable to access myGov online or a computer until, on one version of events, 2022. Further, the Applicant submits that he was unable to access computers in Nairobi from 21 September 2013 due to the security consequences of a significant masked gunman attack on the Westgate shopping mall in Nairobi on that day. The Tribunal notes that this aspect of his evidence only appeared in the statement of 13 May 2024.
It is trite to say that ignorance is no excuse in respect of the application of the law in Australia. The Tribunal decision in Vandenberk and Secretary, Department of Education[1] is consistent with this well-established principle. An ignorance or unawareness of an obligation does not necessarily equate to it not being possible to meet that obligation.
[1] [2024] AATA 1668.
In any event, the asserted ignorance or unawareness of the Applicant is not supported and is contrary to the following facts which the Tribunal finds established on the material before it: (1) save for the Applicant’s assertion during testimony, there is no documentary evidence before the Tribunal which suggests that the Bachelor of Business at Victoria University was offered on a free basis; and (2) on 22 January 2013, the Applicant completed and signed an application form for admission to Victoria University. By that form, he acknowledged that he had read the full enrolment terms and conditions.[2]
[2] See T8, p 61.
By a statutory declaration dated 20 October 2022,[3] the Applicant accepts that he had enrolled in the Bachelor of Business degree and provides evidence of his knowledge and awareness of a census date, although incorrectly identified as 31 December 2013, and importantly states that he could not withdraw before the census date as he had to go overseas for a family emergency on 3 August 2013. In contrast, the Applicant has provided no evidence to the Tribunal about what he was doing prior to 3 August 2013 that supports any finding that it was not possible for him to make any remission application, at least with respect to the semester 1 units before the relevant date. The Tribunal notes that the teaching period for the semester 1 units commenced on 25 February 2013 and census date was 31 March 2013. Further, the semester 2 units commenced on 22 July 2013.
[3] T12, p 75.
For completeness, the Tribunal notes that the policy terms and the 2013 HECS-HELP booklet made clear the Applicant’s various obligations.[4] Further, material before the Tribunal indicates that the Applicant was provided with a Commonwealth Assistance Notice, including HECS-HELP debt associated with each unit, on 30 April 2013, 10 October 2013 and 30 August 2014.[5] There is no evidence before the Tribunal to confirm that those documents were not sent or received.
[4] See, for example, T38, p 129 and T40, pp 140-56.
[5] T4, p 48.
A payment was made to Victoria University on 20 December 2013 as part payment of fees owed; however, in light of the Applicant’s testimony, the Tribunal cannot determine who made that particular payment.
Having considered all of the material before the Tribunal and where necessary, giving greater weight to contemporaneous documents, the Tribunal is satisfied and finds that the Applicant has not established that it was not possible for him to make the applications for remission within both of the critical time periods, namely 22 June 2013 to 22 June 2014 and 16 November 2013 to 16 November 2014, as required by subparagraph 36-23(1)(b) of the Act.
The statutory time limits have not been met and it is therefore unnecessary for the Tribunal to consider any further aspects of this application for review. In the circumstances, the Tribunal affirms the reviewable decision.
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