Solomon Adamson and Secretary, Department of Education
[2015] AATA 141
•12 March 2015
[2015] AATA 141
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2679
Re
Solomon Adamson
APPLICANT
And
Secretary, Department of Education
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh &
Dr CN Kendall, MemberDate 12 March 2015 Place Perth The Tribunal affirms the decision under review.
......(Sgd) CR Walsh..................................................................
Senior Member CR Walsh
CATCHWORDS
HIGHER EDUCATION- student enrolled in graduate diploma at Open Universities Australia – no request for withdrawal received in writing by university by relevant census date – Student FEE-HELP debt affected – whether grounds to remit FEE-HELP debt – special circumstances – Ministerial guidelines – decision under review affirmed
LEGISLATION
The Higher Education Support Act 2003 – s 101-1 – s 104-25(2)(c) – s 104-25(2)(d) – s 104-25(2)(d) – s 104-30(3) – s 104-35(1A) – s 104-35(2) – s 104-40(1A) – s 206-1 (Item 2A) – s 209-10 – s 212-1
The Administration Guidelines 2012 - Chapter 3
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
REASONS FOR DECISION
Senior Member CR Walsh &
Dr CN Kendall, Member12 March 2015
INTRODUCTION
This application concerns whether “special circumstances” apply to Mr Adamson such that his FEE-HELP debt (totalling more than $17,000), relating to certain units of study in which Mr Adamson was enrolled at the Australian Catholic University (ACU) but failed to withdraw from, in writing, by the relevant census date, should be remitted pursuant to s 104-25(2) of the Higher Education Support Act 2003 (Act).
BACKGROUND
FEE-HELP is an Australian Government loan scheme that helps eligible fee paying students pay their tuition fees.
Students can use FEE-HELP to pay for all or part of their tuition fees. Essentially, the government will pay the loan amount directly to the student’s university or approved provider in payment of their tuition fees.
Central to the FEE-HELP system of loan payments is what is referred to as the “census date”. This is the last day for students to submit a “Request for FEE-HELP” form or withdraw their enrolment without incurring a tuition fee or a FEE-HELP debt for a particular university unit.
Significantly, in order to withdraw from a unit without incurring a FEE-HELP debt, students need to advise their university “in writing” prior to the relevant census date.
If a student does not withdraw from a unit “in writing” prior to the census date and then fails the unit, he or she will still have to pay the debt for that unit, regardless of whether he or she has attended any classes or intends to repeat that unit.
In certain “special circumstances” students can apply to their university to have their FEE-HELP balance for a unit re-credited and any FEE-HELP debt for that unit removed. In determining whether or not to do so, the student’s university will seek to determine whether the “special circumstances” that applied to the student were:
·beyond their control; and
·did not make their full impact on the student until on or after the census date; and
·were such that they made it impracticable for the student to complete their unit(s) of study requirements.
These requirements are cumulative such that all three must be met before a student can have his or her Fee-Debt debt re-credited.
Students seeking “special consideration” are required to apply in writing to their university approved provider within 12 months of their withdrawal day (i.e. the day their approved provider specifies in its notice to the student as the day the withdrawal takes effect). If a student has not withdrawn, the withdrawal date is the last day of the period in which the student was to undertake the unit.
On February 7, 2012, Mr Adamson, was accepted into the Graduate Diploma in Occupational Health, Safety and Environmental (OHSE) Management course at Open Universities Australia (OUA).
On 26 July 2013, Mr Adamson made an application to OUA seeking remission of a FEE-HELP debt totalling more than $17,000.
Mr Adamson did so pursuant to s 104-25(2) of the Act.
As outlined by in the Department of Education’s (Department’s) Statement of Facts, Issues and Contentions, dated 5 December 2014 (Department’s SFIC), Mr Adamson sought remission of his FEE-HELP debt in relation to the following units of study (all of which were to be studied on-line via the ACU):
Study Period I, 2012 Units
a)OHS601 - Principles of OHSE Management, with a census date of 19 March 2012;
b)OHS602 - OHSE Management Systems, with a census date of 19 March 2012.
Study Period 2 and 4, 2012 Units
a)OHS603 - OHSE Risk Management, with a census date of 18 June 2012;
b)OHS604 - OHSE Law, with a census date of 18 June 2012;
c)OHS611 - OHSE Auditing, with a census date of 17 December 2012.
Study Period 1, 2013 Units
a)OH5E601 - Principles of OHSE Management with a census date of 18 March 2013;
b)OHS602 - OHSE Management Systems, with a census date of 18 March 2013.
On 23 September 2013, OUA advised Mr Adamson that:
(a)in relation to the Study Period 1, 2012 Units, OUA had declined the Application with respect to these units on the basis that Mr Adamson had not satisfied s 104-25(2) of the Act. OUA did not regard Mr Adamson as having requested it to reconsider this decision and made no review decision in relation to these units; and
(b)in relation to the Study Period 1, 2013 Units, OUA required additional information from Mr Adamson before it would decide the Application with respect to these units.
On the same day, OUA notified Mr Adamson that it had declined his Application with respect to the Study Period 2 and 4, 2012 Units.
On 17 December 2013, Mr Adamson requested (via email) that OUA review its decision in relation to the Study Period 2 and 4, 2012 Units.
The decision in relation to the Study Period 2 and 4, 2012 Units was confirmed in a letter to Mr Adamson from Dr Cathy Stone, Director Student Success, OUA, dated 20 December 2013.
In relation to the Study Period 1, 2013 Units, Mr Adamson was advised by OUA via letter dated 9 January 2014 that it had declined his Application with respect to these Units.
Mr Adamson did not request OUA to reconsider its decision in relation to the Study Period 1, 2013 Units.
ISSUES
The Tribunal was advised that Mr Adamson no longer contends that he should have his FEE-HELP debt in respect to the Study Period 1, 2012 or of the Study Period 1, 2013 Units remitted.
Consequently, the issue to be determined by the Tribunal is whether s 104-25(2) of the Act applies to Mr Adamson in respect to the Study Period 2 and 4, 2012 Units and, more specifically, whether there are “special circumstances” that apply to him that would result in his FEE-HELP debt in relation to these units being remitted.
LEGISLATION
The Higher Education Support Act 2003
Right of Review
Section 206-1 (Item 2A) of the Act provides that a decision by a higher education provider that finds that s 104-25(2) of the Act does not apply to a person in relation to a unit of study is a “reviewable decision”.
A person whose interests are affected by a “reviewable decision” may request a reconsideration of the “reviewable decision” under s 209-10 of the Act.
A “reviewable decision” that has been reconsidered may be reviewed by the Tribunal under s 212-1 of the Act.
FEE-HELP Assistance
“FEE-HELP assistance” is described in s 101-1 of the Act as follows:
A student may be entitled to FEE-HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met.
The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a higher education provider or, if the student accesses units through Open Universities Australia, that body, to discharge the student's liability to pay his or her tuition fees
A person's FEE-HELP balance can be re-credited under s 104-25 of the Act.
Section 104-25(2) sets out the circumstances in which OUA must, on the Secretary’s behalf, re-credit a person's FEE-HELP balance with an amount equal to the amount of FEE-HELP assistance that the person has received for a unit of study.
Relevantly, s 104-25(2)(c), (d) and (e) of the Act provide:
(c) Open Universities Australia is satisfied that special circumstances apply to the person (see section 104-30); and
(d) the person applies in writing to Open Universities Australia for re-crediting of the FEE-HELP balance; and
(e) either:
(i) the application is made before the end of the application period under section 104-35; or
(ii) Open Universities Australia 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.
Section 104-30(3) of the Act provides:
For the purposes of paragraph 104-25(2)(c), special circumstances apply to the person if and only if Open Universities Australia 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.
Section 104-35(lA) and (2) of the Act provide:
(1A) If:
(a) the person applying under paragraph 104-25(2)(d) for the re-crediting of the person's FEE-HELP balance in relation to a unit of study has withdrawn from the unit; and
(b) Open Universities Australia 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 subsections (1) and (lA) do not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.
Section 104-40(lA) of the Act provides:
(lA) If:
(a) the application is made under paragraph 104-25(2)(d) before the end of the relevant application period; or
(b) Open Universities Australia 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;
Open Universities Australia must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision of the application.
The Administration Guidelines 2012
The Department argued before the Tribunal that the Tribunal should take Chapter 3 of The Administration Guidelines 2012 (Administration Guidelines) into account in making any decision as to whether s 104-25(2)(c) and s 104- 30(3) of the Act have been satisfied.
In submissions to the Tribunal, the Department noted:
(a) the Administration Guidelines were made by the Minister on 28 November 2011 and include “Chapter 3, Special Circumstances”;
(b) while the Administration Guidelines do not apply to OUA as a legislative instrument (as they do with higher education providers dealing with “special circumstances” applications), the Department has instructed OUA that, as a matter of departmental policy, it should apply the Administration Guidelines when making “special circumstances” decisions; and
(c) there are no cogent reasons why the Tribunal should not follow the Administration Guidelines in exercising its discretion in this matter and from an administrative consistency perspective, there are strong reasons for applying the Administrative Guidelines.[1]
[1] The Tribunal is not bound by departmental policy but will usually apply it unless there are cogent reasons not to do so, such as because it is unlawful or its application would produce an unjust result in the circumstances: Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645 per Brennan J.
The Tribunal agrees and notes that Mr Adamson did not contest the Department’s abovementioned submissions.
Chapter 3 of the Administration Guidelines deals with “special circumstances” as follows:
3.1 PURPOSE
2.1.1 The 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(l)(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(lj(c) of the Act).
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 [sic] must be unusual, uncommon or abnormal.
3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
A 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. [Emphasis added]
RELEVANT DATES AND EVIDENCE
The Tribunal did not receive a Statement of Facts, Issues and Contentions from Mr Adamson. However, the Department’s SFIC contained a detailed chronology of events that was not objected to by Mr Adamson.
That chronology outlined the following relevant dates and corresponding evidence.
Between 7 and 10 February 2012, having been accepted into the Graduate Diploma in OHSE Management course at OUA, Mr Adamson completed a FEE-HELP “Obligations and Student Declaration” form for the following units:
·OHS601 - Principles of OHSE Management and OHSE602 - OHSE Management Systems, Study Period 1, 2012;
·OHS603 - OHSE Risk Management and OHS604 - OHSE Law, Study Period 2, 2012; and
·OHS611 - OHSE Auditing and OHS612 - OHSE Ergonomics, Study Period 4, 2012.
The FEE-HELP “Obligations and Student Declaration” form contained a section entitled “Obligations” that read:
·I have read the FEE-HELP information Booklet and I am aware of my obligations if I receive FEE-HELP assistance; and
·I understand that my debt with the Commonwealth will remain if I withdraw or cancel my enrolment fee after the census date but that it may be removed by OUA in special circumstances.
It is worth noting here that the FEE-HELP Booklet that Mr Adamson received at that time, and which he declared that he had read and understood, contained the following paragraphs:
·
7. WITHDRAWING FROM STUDIES
7.1 How do I withdraw from a unit?
To withdraw from a unit without using up your FEE-HELP balance, incurring a FEE-HELP debt for the unit or losing an up-front tuition fee payment, you need to complete your approved FEE-HELP provider's (approved provider's) formal withdrawal procedures by the census date.
The main points are:
·your formal withdrawal needs to be in writing on the form required by your approved provider;
·you need to submit this form in time for it to be delivered and processed by the census date;
·you may need to withdraw online - check with your approved provider's student administration area; and
·keep a copy of your withdrawal documentation as confirmation that you completed your approved provider's formal withdrawal procedures by the census date.
For more details or if you need any help with the process, contact your approved provider.
The census date is not the same thing as the academic withdrawal date - the deadline set by your approved provider for withdrawing from a unit without having a fail grade recorded on your academic transcript.
7.2 What happens if I withdraw by the census date?
If you formally withdraw from a unit by the census date, your FEE-HELP balance will not be reduced and you will not incur a FEE-HELP debt.
7.3 What happens if I withdraw after the census date?
If you withdraw from a unit after the census date, your FEE-HELP balance will still be reduced and you will still incur a FEE-HELP debt.
You cannot transfer or defer this debt to another unit of study.
If you withdraw from a unit after the census date because you become seriously ill or because of other 'special circumstances' (see section 7.7) you can apply to your approved provider to have your FEE-HELP balance for a unit re-credited and any FEE-HELP debt for the unit removed.
How Do I withdraw from an Open Universities Australia (OUA) Unit?
If you are an OUA student and you want to withdraw from a unit, you need to either:
·Send a signed, written notification to OUA; or
·Log on to the OUA website with your OUA ID and password to request a withdrawal online.
OUA must receive your application for withdrawal by the census date if you want to avoid incurring a FEE-HELP debt.
7.6 What happens if I fail a unit?
If you fail a unit, you still have to pay the debt for that unit, regardless of whether you attended any classes or will repeat the unit. Students who fail a unit will be required to pay for that unit a second time if they undertake it again.
In certain 'special circumstances' (see section 7.7) you can apply to your approved provider to have your FEE-HELP balance for a unit re-credited and any FEE-HELP debt for the unit 'removed’.
7.7 How can I apply to have my FEE-HELP debt removed and my FEE-HELP balance re-credited under 'special circumstances'?
If you fail a unit, under the 'special circumstances' provisions, you can apply to your approved provider to have your FEE-HELP debt removed and your FEE-HELP balance recredited.
Your approved provider will re-credit your FEE-HELP balance if it is satisfied that special circumstances applied to you that were:
·beyond your control; and
·did not make their full impact on you until on or after the census date; and
·were such that they made it impracticable for you to complete your unit(s) of study requirements.
Your approved provider will decide whether to re-credit your FEE-HELP balance in accordance with the requirements of the Higher Education Support Act 2003 and its associated guidelines. You will need to provide independent supporting documentation to support your claim that special circumstances occurred. [Emphasis added]
On 7 February 2012, Mr Adamson enrolled in OHS601 (Study Period 1, 2012 Unit).
On 10 February 2012, Mr Adamson enrolled in OHS602 (Study Period 1, 2012 Unit), OHS603 and OHS604 (Study Period 2, 2012 Units), OHS611 and OHS612 (Study Period 4, 2012 Units).
Mr Adamson was able to at this time to access information from OUA such as the OUA 2012 Handbook, which provided detailed information to students in relation to studying with OUA, including:
· The FEE-HELP penalties that attach to late withdrawal; and
· The need to complete a specified written form when withdrawing.
On 21 February 2012, Mr Adamson was sent a welcome letter from the ACU regarding the Study Period 1, 2012 Units. Relevantly, that letter contained a paragraph that refers student to the OUA website for information on how to withdraw from a unit.
The study period for the Study Period 1, 2012 Unit commenced on 27 February 2012. The census date for the Study Period 1, 2012 Unit was 19 March 2012.
On 9 April 2012, Mr Adamson was sent (via the “My OUA” Portal) a “Commonwealth Assistance Notice” for the Study Period 1, 2012 Units showing a census date of 19 March 2012.
On 20 April 2012, Mr Adamson sent an email to the ACU that read:
I have been trying to get hold of you by phone but to no avail. I am enrolled in Graduate Diploma in Occupational Health Safety & Environment Management and the reason why I have been trying to contact you is because I need extension with my Assignments. I am currently working away in Western Australia Remote Area in the Construction Industry whereby we building infrastructure thereby I do not have access to email especially to hand in my assignments. I know I am behind but at the moment I have 3 assignments that are overdue so am wondering if it is possible to have an extension for Assignment 2 for both my 2units [sic] I am enrolled in which are due on Sunday the 22nd of April ...
On 23 April 2012, Mr Adamson sent an email to Ms Kelly Callaghan, of the ACU, that read:
My name is Solomon Adamson (student number 500138981), I have been referred to you by Chantal, could you please forward all the communications to this email so that I can access them a.s.a.p.
On 23 April 2012, Ms Callaghan sent an email to Mr Adamson that read:
It is an ACU requirement that all student communication must use the ACU email address provided to you. I will respond to your request to Chantal later today, using your ACU email address. Alternatively you can use the messaging function within LEO.
On the same date, Mr Adamson sent an email to Ms Callaghan that read:
I understand the ACU requirements only that was [sic] trying to notify you that I can easily and quickly access this email especially when I am here onsite because I have limited access on my private email due to network problems. Will just keep on checking for your respond (sic).
On 23 April 2012, Ms Callaghan sent another email to Mr Adamson that read:
It is usual practice to apply for an extension prior to the submission of the assessment. As the due date for the reports has passed you need to apply for Special Consideration. I have attached the form which contains the policy at the end. I have also attached the Application for extension form.
I will be able to grant you an extension for Assessment 2 for OHSE601 and OHSE602 of 1 week. Your reports will be due by Sunday 29th April.
The Study Period 1, 2012 Unit ended on 27 May 2012.
Mr Adamson received fail grades for the Study Period 1, 2012 Units.
The Study Period 2, 2012 Unit started on 28 May 2012.
On 3 June 2012, Mr Adamson sent an email to Ms Callaghan that read:
I have been in touch with you regarding my case before and would like you to advise me what I should do. I have been on a back log on all the assessments which resulted in me not being able to complete even one of them. I know now it may be too let [sic] to submit my Report for both units OHSE601 and OHSE602. I am really lost to what action I should take as I am willing to complete my studies.
Hope this clarifies my situation.
On 4 June 2012, Ms Callaghan sent an email to Mr Adamson that read:
No Solomon it is not too late to submit your reports for OHSE601 and OHSE602. I assume that they have been completed? You will have until 11 June to submit these reports. From our conversation I understand that you are temporarily located in a remote region of Australia for work. I am concerned that you have undertaken an online course without ensuring you have the appropriate internet access required to undertake the units. I note that you are enrolled in two units for the current study period. Your two new units will also have the same assessment strategy - continuous assessments and an online exam at the end. If you are still not able to ensure internet access in order to complete assessment activities I would encourage you to reconsider your options at this time.
All the best and let me know how ACU can help you.
On 4 June 2012, Mr Adamson responded to Ms Callaghan as follows:
Thank you Kelly for all the support and advise [sic] on my studies. I will be able to continue with my studies, my reports are finished and will be reviewing them and will submit them before the due date, could you please advise how I should submit these reports (through LEO [i.e. ACU’s Online Learning Environment] or email direct). My other concern is will I be able to do the Online Continuous Assessment which I did not have chance [sic] to do and when will be the exam due [sic].
Once again thank you for your support.
On the same day, Ms Callaghan responded to Mr Adamson as follows:
You need to load your reports into LEO [i.e. ACU’s Online Learning Environment], as late submissions are allowed. The exam for both units was extended for all students and closes on Sunday night 10th June. I doubt you will be able to take the continuous assessment quizzes, but I will check with the Associate Dean and get back to you.
On 5 June 2012, Mr Adamson sent another email to Ms Callaghan that read:
Just wondering if you have any information if I am still able to to [sic] take all the continuous assessment quizzes
On 6 June 2012, Ms Callaghan responded to Mr Adamson’s email, dated 5 June 2002, as follows:
Sorry for not replying yesterday but I was in meetings all day. I discussed your situation with the Associate Dean Learning and Teaching. He advised that you should have asked for special circumstances at the time the quizzes were originally scheduled. It would be unfair to other students to allow you to take the quizzes now, after the study period has finished. In relation to your reports for OHSE601 and OHSE602 you did receive an extension at the time they were due. Therefore you will not be able to receive another extension passed (sic) the one approved below.
The units in which you have enrolled for study period 2 have the same assessment strategy - that is, 5 continuous assessments. You mentioned below that you want to continue studying and so I hope that you have made arrangements for appropriate internet access? Please note that you can withdraw from units with OUA before 18th June without financial penalty (ie you get your money back) or academic penalty (ie you do not fail the unit). To do this you have to go to the OUA website.
On the same day, Mr Adamson responded to Ms Callaghan’s reply email, of 6 June 2012, as follows:
Thank you very much for all the helpful advise [sic] you gave me, however, I am very happy to continue with my studies but my main worry is will I pass my previous units without taking these quizzes hence that is where my main concern is hope this helps clarifying myself.
The census date for the Study Period 2, 2012 Units was 18 June 2012.
On 9 July 2012, Mr Adamson was sent (via “My OUA” Portal) a “Commonwealth Assistance Notice” for the Study Period 2, 2012 Units showing a census date of 18 June 2012.
The Study Period 2, 2012 Units ended on 26 August 2012.
Mr Adamson received fail grades for the Study Period 2, 2012 Units.
On 3 October 2012, Mr Adamson’s enrolment in OHS 612 (Study Period 4, 2012) was dropped pursuant to the required withdrawal form.
The Study Period 4, 2012 Unit started on 11 November 2012.
The census date for the Study Period 4, 2012 Unit was 17 December 2012.
On 7 January 2013, Mr Adamson was sent (via “My OUA” Portal) a “Commonwealth Assistance Notice” for OHS611 (Study Period 4, 2012) showing a census date of 17 December 2012.
On 31 January 2013, Mr Adamson completed a (FEE-HELP) “Obligations and Student Declaration” for OHSE601 and OHSE602 (Study Period I, 2013 Units). Again, as above, that form contained a paragraph that required Mr Adamson to declare that he had read and understood the Fees and Charges Section on the OUA website, as well as the FEE-HELP Information Booklet and that he was aware of his obligations if he received FEE-HELP assistance.
On 31 January 2013, Mr Adamson enrolled in the Study Period 1, 2013 Units.
On 15 February 2013, Mr Adamson was sent a welcome letter from ACU regarding the Study Period 1, 2013 Units. Relevantly, that letter stated:
To withdraw from a unit please visit the Open Universities Australia website and submit your request as soon as possible.
On 15 February 2013, the following email exchange occurred between Ms Callaghan and Mr Adamson on ACU's Online Learning Environment known as “LEO” (LEO):
Friday, 15 February 2013
10:49 AM: Dear Students, A hidden technical setting caused your unit to roll over into archive status overnight. Once informed I 'hunted down' and changed the setting. So your units should be back to normal.
All the best, Kelly
The Study Period 4, 2013 Unit ended on 24 February 2013. Mr Adamson received a fail grade for the Study Period 4, 2012 Unit (OHS611).
The Study Period 1, 2013 Unit commenced on 25 February 2013.
The census date for the Study Period 1, 2013 Unit was 18 March 2013.
On 8 April 2013, Mr Adamson was sent (via the “My OUA” Portal) a “Commonwealth Assistance Notice” for the Study Period 1, 2013 Units showing a census date of 18 March 2013.
Between 9 and 10 April 2013, the following exchange occurred between Ms Callaghan and Mr Adamson on LEO:
Tuesday, 9 April 2013
4:41 PM: hello Kelly, I was just wondering if you are able to assist me because due to the location of my work I had been struggling in getting internet reception, because I work in a WA remote area. Now that the problem is fixed, I will be having enough internet access starting today the 9th of April 2013. My internet problems made it difficult in attempting Assessment 1. Just wondering if I could have exemption so that I will be able to access the Assessment. hope this help [sic]
Wednesday, 10 April 2013
2:15PM: Hi Solomon, I have spoken to the Associate Dean as the tutors for your 2 units have already posted feedback on the first quiz in the Forum. Because of this, the best mark you can get for each quiz will be a pass. I will open the first quiz in both your units tomorrow and it will close on Saturday 13/4/13.
All the best, Kelly
The Study Period 1, 2013 Unit ended on 26 May 2013. Mr Adamson received fail grades for the Study Period 1, 2013 Units.
The application period for Study Period 1, 2012 Units ended on 27 May 2013.
Between 25 and 26 July 2013, the following exchange occurred between Ms Callaghan and Mr Adamson on LEO:
Thursday, 25 July 2013
9:57 AM: hello Kelly, sorry been quiet because my internet became intense therefore I could not continue with my studies nor even submit any work. Could you please assist me and point out in the right direction so that I can discuss with someone in regards to this as I was supposed to have withdrawn a while ago
Friday, 26 July 2013
9:22 AM: Hi Solomon, you need to contact OUA and I believe they have sent you an email about what you could do.
Thanks, Kelly
On 26 July 2013, Mr Adamson submitted a “Special Circumstances Application” to OUA in relation to the Study Period 1, 2012 Units, the Study Period 2, 2012 Units, the Study Period 4, 2012 Unit (OHS611) and the Study Period 1, 2013 Units, seeking remission of his FEE-HELP debt for those units (Special Circumstances Application).
On 23 September 2013, Mr Adamson was sent a letter from OUA declining the Special Circumstances Application in relation to the Study Period 1, 2012 Units.
On 23 September 2013, Mr Adamson was sent a sent a letter from OUA declining the Special Circumstances Application in relation to the Study Period 2, 2012 Units (OH603, OH604) and the Study Period 4, 2012 Unit (OHS611).
On 23 September 2013, Mr Adamson was sent a letter from OUA requesting further information in relation to the Special Circumstances Application in relation to the Study Period 1, 2013 Units.
On 26 September 2013, Mr Adamson received an email from Ms Callaghan that read:
Your application for withdrawal without academic penalty due to Special Circumstances has been forwarded to ACU by OUA. I note that you are asking for Special Circumstances withdrawal for the following units:
Unit Code /Term
OHS601 / SPl-12
OHS602 / SPl-12
OHS603 / SP2-12
OHS604 / SP2~12
OHS611 /SP4-12
On 9 April 20127 you used the messaging system in LEO (ACU online learning environment) to request an extension for the first assessment in OHSE601 and OHSE602 (that had closed on 31 March). As feedback had already been provided in an open forum the Associate Dean Learning and Teaching advised that the best mark you could get in the unit would be a pass and I replied to your LEO message on 10 April to let you know this and that the quiz would open on Thursday 11 April and close on Saturday 13 April.
On 3 June you asked whether it was too late to submit your reports (Assessment 2) for OHSE601 and OHSE602 and I advised that you could submit them up to 11 June. In that email I also expressed my concern that you were enrolled in online units without ensuring you had appropriate internet access. I also indicated that Study Period 2 unit had the same assessment strategy "Your two new units will also have the same assessment strategy -- continuous assessments and an online exam at the end." I also went on to advise "If you are still not able to ensure internet access in order to complete assessment activities I would encourage you to reconsider your study options at this time."
On 4 June you indicated that you wished to continue with your studies. You said you would submit the report "before the due date". You asked whether you could complete the continuous assessments you had missed and the final exam. On 6 June I advised that you would not be able to complete the continuous assessments as the study period had finished and nor would you be able to get another extension to submit the reports. Again I raised my concerns for study period 2 and provided information on how you could withdraw without penalty, "The units in which you have enrolled for study period 2 have the same assessment strategy -- that is, 5 continuous assessments. You mentioned below that you want to continue studying and so I hope that you have made arrangements for appropriate internet access? Please note that you can withdraw from units with OUA before is" June without financial penalty (ie you get your money back) or academic penalty (ie you do not fail the unit). To do this you have to go to the OUA website.
And again you said you wanted to continue.
25 July you used the LEO messaging system to let me know you were experiencing internet difficulties and asked about withdrawing - "hello Kelly, sorry been quiet because my internet because intense therefore I could not continue with my studies nor even submit any work. Could you please assist me and point out in the right direction so that I can discuss with someone in regards to this as I was supposed to have withdrawn a while ago." I responding [sic} advising that OUA had sent you an email about the process for withdrawing under Special Circumstances.
In reviewing this history I note that you were provided with advice on two occasions regarding your studies and you choose not to follow that advice. I discussed your case with the Associate Dean Learning and Teaching yesterday and he has advised that we are not able to approve your withdrawal from the above units without penalty under the Special Circumstances provisions of the Higher Education Support Act Thus there will be no change to the grades showing on Student Connect at ACU nor at the OUA.
Furthermore the Associate Dean Learning and Teaching has advised me that, if you want to return to your studies at ACU, you may only enrol in OHSE601 and may not enrol in a second unit until you pass OHSE601.
On 26 July 2013, Mr Adamson sent the following email to Ms Callaghan:
I did not follow these instructions as I could not access the internet during that time and it was not my fault, I thought the problem would be rectified that is when I had to try studying for the following semester. To my surprise how can I be enrolled in OHS603, OHS604 & OHS611 yet it [sic] I have to pass the first units before proceeding for the other units. This seems wrong because you are trying to penalise me for circumstances beyond my control.
On 27 September 2013, Ms Callaghan sent an email to Mr Adamson that read:
I understand that your access to the internet in remote WA may have been outside your control. However you did know about this issue prior to the Census Date for the study periods in which you were enrolled. Furthermore you did not follow the advice you were given on 2 occasions - not because of internet issues, but because you told me you wanted to continue your studies.
In 2012 pre-requisite unit requirements were a recommendation and this was stated clearly on the OUA website. At OUA students are required to enrol in units themselves - therefore how can your enrolment in OHSE603, OHSE604 and OHSE611 be a ‘surprise’? By enrolling yourself into these units you choose to ignore the pre-requisite recommendations.
According to the Higher Education Support Act Special Circumstances are defined as --
(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.
As published on the OUA web site "Special circumstances are serious events beyond your control that occurred after the specified withdrawal date, affecting your ability to continue with your studies."
Known internet restrictions do not constitute ground for Special Consideration. The fact that you chose to enrol in intermediate units in spite of the prerequisite recommendations is also not ground for Special Consideration. Thus there will be no change to the grades showing on Student Connect at ACU nor at OUA.
I understand that you have the right of formal appeal and you should contact OUA on how you go about this.
On 17 December 2013, Mr Adamson sent an email to OUA which was treated by OUA as a request for reconsideration of its decision on the Special Circumstances Application in relation to the Study Period 2, 2012 Units (OH603, OH604) and the Study Period 4, 2012 Unit (OHS611).
That email included the following statement by Mr Adamson:
Please find attached my contract of employment with Liberty Industrial Pty Ltd. I was employed from May 2012 to June 2013 to work at a project in the Pilbara (remote WA). The location of the project impacted on my studies as well as limited communication with all authorities involved. The contract of employment is the supporting evidence for the Special Circumstances for study period 1, I wanted to resume studying hoping that the network situation would be resolved at work but to no avail it did not and it was beyond my control.
It came to my attention that I realized ACU enrolled me into units OHS603 & OHS604 for study period 2, 2012 without my consent. I really do not know how this happened bearing in mind that I had difficulties in studying the first 2 units so I had planned to halt all the studies for 2012 hoping situation to change. This was also for OHS611 study period 4 which I was not aware they even proceeded in enrolling me, how they did it I do not know because I still had difficulties accessing my studies nor email communication with them.
Working in remote WA is extremely difficult especially with the accommodation location therefore bad communication reception. After realizing that ACU had enrolled me without my consent I contacted them and was advised that the issue will be resolved between ACU & Open University since I explained to them I had no access in communicating with all authorities (in writing/emails). Being without access to internet communication made it hard since it would delay to discover all these issues.
As for units OHSE 601 & OHSE 602, study period 1, 2012 that is when I started experiencing difficulties in studying because of work location in remote Western Australia, therefore had to cancel all the studies for the year 2012 until project completion only too [sic} find out that ACU would automatically enroll [sic] me without my consent.
Hope this helps clarify my concern and would put my appeal into consideration. If you require any further information please do not hesitate to contact me ...
On 20 December 2012, Mr Adamson was sent an email from OUA attaching a letter declining his request for reconsideration of its decision of the Special Circumstances Application in relation to the Study Period 2, 2012 Units (OH603, OH604) and the Study Period 4, 2012 Unit (OHS611).
On 17 December 2013, Mr Adamson sent documentation (specifically, the terms of his employment with Liberty Industrial) in support of the Special Circumstances Application in relation to the Study Period I, 2013 Units.
On 9 January 2014, Mr Adamson was sent an email from OUA attaching a letter declining the Special Circumstances Application in relation to the Study Period 1, 2013 Units.
On 9 January 2014, Mr Adamson sent an email to OUA that read:
It seems you guys are reap offs [sic] at first you asked a letter from my employer with a valid company logo which I produced now you [sic] telling me all this nonsense how could I have contacted you yet I was stuck in the remote WA you should be considerate.
Now you taught me a lesson I do not have anything to do with OAU [sic] and would not recommend anyone to you
Thank you very much for these crazy games and please delete me from your database (sic) don't want to deal with you anymore you just after money making yet I didn't attempt even one unit.
On 10 January 2014, Ms Callaghan sent the following email to OUA:
In September last year I advised Solomon that ACU would not be able to grant his withdrawal under Special Circumstances. On 26 September I uploaded a copy of my email to the SDE to advise OUA of my response to Solomon's application. This latest document does not change the outcome of our earlier decision.
In this latest document Solomon again accuses ACU of enrolling him into units without his permission or knowledge in Study Period 2 2012. According to ADD file 33195 Solomon Adamson wished to be enrolled in OHSE603 and OHSE604 which we duly actioned. I assume that if OUA check their records for SP2 2012 you can confirm that he did in fact log on and select those units?
On 14 May 2014, Mr Adamson sent an email to Ms Callaghan that read:
I have been advised by the authorities since I am disputing my online studying bill amounting to more than $17000 for studies I did not even participate nor attempt due to circumstances beyond my control and this was well communicated with you on time therefore I cancelled enrollment [sic] over the phone, could you please advise me if Australia Catholic University or Open University is answerable to my next step of taking this case further to the Australian Authorities since they have instructed me to let you know of all the way I am taking. I even explained to you that I cancelled my enrollment [sic] you kept on enrolling me back in the course the following semesters without my consent. Surely your records can tell that I did not even participate nor complete at least 1 unit because of circumstances beyond my control and my punishment is being billed more than $17000 …
On 15 May 2014, Ms Callaghan sent an email to Mr Adamson that read:
As mentioned in communications throughout last year, since you enrolled in the OHSE course with Open Universities Australia, any issues you may have regarding fees is a matter for you and OUA to discuss.
At no time did we enrol you in a unit without your consent, as you put it. OUA manages the postgraduate OHSE program for ACU, and we action enrolment requests that we receive from OUA. You were advised by ACU on a number of occasions in 2013 to withdraw from the course because of your poor progress, and not to enrol in further units.
However, as we informed you, it is up to the student to withdraw before census dates in order to avoid incurring a FEE-HELP liability. That you chose to enrol in units, and to continue with units past their census dates, was not in our control and against our advice.
Further, as specifically discussed at the time, we were unable to support your request for consideration under the special circumstances provisions in the Higher Education Support Act 2003 (as amended) because your circumstances did not satisfy the requirements of the Act.
On 15 May 2014, Mr Adamson sent an email to Ms Callaghan that read:
I did cancelled [sic] my enrolment [sic] on the phone in 2013 and I ignored the follow up only to find out that I was re-enrolled the following semester. When I phoned your university that is when I was advised I have to complete special circumstances because the system had re-enrolled me. This does not make sense because honestly speaking how can I owe $17 000 for a course I didn't even hand in a single exercise. Anyway thank you for your explanation, I will have to take this further and see how we go with the authorities.
On 22 May 2014, Mr Adamson was sent another email from Ms Angie Fraser, of the OUA, that read:
Thank-you for [sic] patience and time on the phone today.
I just wanted to confirm that we had discussed your Special Circumstances today, and that we would not be able to change the decision unless you were able to provide further information that meets the legislative requirements.
As previously advised, I have suggested that you contact the AAT in Perth to further your request to have your Fee-Help recredited. Here are their details again for you: 1300 366700 & [email protected]
Please let me know if you require any further information, otherwise, I sincerely wish you all the best in this process - many thanks ...
On 30 May 2014, Mr Adamson applied to the Tribunal for a review of OUA’s decision on the Special Circumstances Application in relation to Study Period 2, 2012 Units (OH603, OH604) and the Study Period 4, 2012 Unit (OHS611).
ANALYSIS
As noted above, Mr Adamson did not provide the Tribunal with a Statement of Facts, Issues and Contentions. The Department’s SFIC outlines Mr Adamson’s main contentions as follows:
(a) Mr Adamson enrolled in the Study Period 1, 2012 Units at OUA;
(b) Mr Adamson was working in the civil construction industry 'in remote WA'.
Working in remote WA is extremely difficult especially with the accommodation location therefore bad communication reception'. 'I was employed from May 2012 to June 2013 to work at a Project in the Pilbara (remote WA);
(c)Mr Adamson had an “inability to access the internet due to work location (remote WA)’, and he could not 'do online studies whatsoever”;
(d)Mr Adamson said:
I also once withdrew from the study period 1 in 2012 because of this issue'. 'I rang ACU and notify them to cancel my enrolment, due to communication difficulties. I found out later that still I was enrolled in these studies in which I queried again and was advised to apply for special circumstances, because this was after the census date was also blamed that it was my fault that work related issues are not accepted as it is not listed;
(e) Mr Adamson stated:
I was enrolled in Study period 2 in 2013 (by which the Tribunal assumes he means 2012) yet is a pre-requisite to pass the study period 1 units to proceed with the other units'. 'It is mandatory to pass the first two units then move on to the next stage but I was enrolled in these units without my consent as well I did not attempt the first two units of this course'. 'I realised ACU enrolled me into units OHS603 & OHS604 for study period 2, 2012 without my consent. I really do not know how this happened bearing in mind that I had difficulties in studying the first 2 units-so I had planned to halt all studies for 2012 hoping situation to change. This was also for OHS611 study period 4 which I was not aware they even proceeded in enrolling me, how they did it I do not know because I still had difficulties accessing my studies nor email communication with them; and
(f) According to Mr Adamson:
after realising that ACU had enrolled me without my consent I contacted them and was advised that the issue will be resolved between ACU & [OUA] since I explained to them I had no access in communicating with all authorities (in writing/emails).
Mr Adamson did not dispute the above summary and the Tribunal accepts that the summary is an accurate reflection of why Mr Adamson considers that he should be afforded special consideration and has his FEE-PAY debt for the Study Period 2 and 4, 2012 units, and the subject of this application, re-credited.
The situation that Mr Adamson now finds himself faced with is unfortunate. He is liable to the Commonwealth for a FEE-HELP debt that is considerable, despite not completing any of the units in question.
Despite being sympathetic, the Tribunal is required to make its decision based solely on the relevant legislation and guidelines.
For Mr Adamson to be successful in having the Tribunal determine that s 104-30(3) of the Act applies to him in relation to the Study Period 2 and 4, 2012 units, the Tribunal must ask itself whether there are “special circumstances” applying to Mr Adamson that require the re-crediting of the FEE-HELP debt outstanding for these units. This involves consideration of the following questions:
·Were there circumstances beyond Mr Adamson’s control?;
·If so, did the circumstances not make their full impact on Mr Adamson until on or after the census date for the units of study in question?; and
·If so, did the circumstances make it impracticable for Mr Adamson to complete the requirements for the relevant units during the period in which Mr Adamson undertook, or was to undertake, the units?
Having considered all of the evidence before it, the Tribunal agrees with the Department that Mr Adamson received sufficient written information from OUA in relation to how to enrol in and withdraw from academic units.
As noted by the Department, the evidence shows that on 10 February 2012, Mr Adamson enrolled in the Study Period 2 and 4, 2012 Units. In doing so, Mr Adamson declared that he was aware of his obligations in relation to fees and charges arising from enrolment.
Further, on 7 and 10 February 2012, Mr Adamson completed and signed a “Request for FEE-HELP Assistance Open Universities Australia” form. That form required Mr Adamson to acknowledge that he had read the FEE-HELP Information Booklet and was aware of his debt and payment obligations if he received FEE-HELP assistance. That booklet clearly explained that any request for withdrawal from a unit had to be done in writing. It also outlined the consequences of not withdrawing in a timely manner and the meaning of “special circumstances” as used in the Act.
Mr Adamson also received and had access to information from the ACU in relation to what needed to be done should he wish to withdraw.
Mr Adamson’s oral evidence before the Tribunal was that he withdrew from the Study Period 1, 2012 Units on the phone during a conversation with someone from ACU. He explained that he thought that this was sufficient to withdraw from that unit without failure. Mr Adamson also stated that he could not have enrolled in the Study Period 2 and 4, 2012 Units because he had either withdrawn from the Study Period 1, 2012 Units or he had failed them and it was a prerequisite for these units that he first pass the Study Period I, 2012 Units.
Other than his own statement, there was no evidence before the Tribunal to support Mr Adamson’s statement that he had withdrawn from his Study Period 1, 2012 Units on the phone. There was, however, evidence that Mr Adamson had received considerable documentation (which he himself acknowledged he had read) that detailed that all withdrawals had to be done “in writing”. Further, the evidence shows that Mr Adamson registered himself in the Study Period 2 and 4, 2012 Units. No one did it for him and without this consent.
The Tribunal also notes that prior to the census date for the Study Period 2, 2012 Units, ACU advised Mr Adamson that he might consider withdrawing from these units given the difficulties he was experiencing. Mr Adamson responded “I am very happy to continue with my studies”.
Further, the Tribunal also notes that there is no evidence to support Mr Adamson’s statement that he contacted OUA and ACU and was told that “his issues would be resolved between OUA and ACU”.
In relation to Mr Adamson’s statement that his employment in remote Western Australia resulted in limited internet access and an inability to complete his course assignments on-line, the Tribunal notes the following, as outlined by the Department:
(a) Mr Adamson’s offer of employment from Liberty Industrial, dated 30 April 2012, provided that Mr Adamson would:
(i) commence his employment in May 2012 (clause 1); and
(ii) be entitled to one week of rest and recreation (R&R) leave after the completion of four weeks of continuous rostered days or shifts on site and R&R will be taken as soon as practicable after it becomes due as agreed (clause 12); and
(b) having regard to what has been asserted by Mr Adamson (i.e. that he was employed in the Pilbara region of Western Australia in the period May 2012 to June 2013), it is apparent that, on Mr Adamson’s own version of events, he enrolled in the Study Period 1, 2012 Units and the Study Period 2, 2012 Units, three months before his employment commenced in the Pilbara.
The Department also highlights:
(a) Mr Adamson has not accounted for his movements when he was on R&R leave from his employer;
(b)Mr Adamson was aware, or ought to have been aware, that the delivery mode for his course was online; and
(c) the chronology of events records a number of emails sent by Mr Adamson to ACU during the time he alleges he had an inability to access the internet.
The Department rightly points out that given all of the above, the Tribunal must now ask itself whether:
(a) the circumstances in which Mr Adamson found himself, namely:
(i) in Mr Adamson’s contention, the circumstances described in paragraph 99 above; and
(ii) Mr Adamson’s failure to withdraw from the Units concerned on or before their census date,
were circumstances that were “beyond Mr Adamson’s s control”; and
(b) having regard to the requirements of the Administration Guidelines, a reasonable person would consider that the circumstances were not due to action and/or inaction on the part of Mr Adamson and for which he was not responsible; and whether the situation was “unusual, uncommon or abnormal”.
The Tribunal finds that Mr Adamson could have withdrawn from the Study Period 2 and 4, 2012 Units, the subject of this application, prior to the relevant census dates. Had he done so, he would not now be liable for his FEE-HELP debt for these units. His failure to do so, resulted from inaction on his part and his part alone - Mr Adamson was the author of his own misfortune.
Mr Adamson was aware prior to the relevant census dates for the Study Period 2 and 4, 2012 Units that he was having internet difficulties. Despite this, and despite being encouraged by ACU employees, who were trying to assist him to consider withdrawing from the units in question without penalty, Mr Adamson chose to continue studying.
There is no clear evidence that following this decision, Mr Adamson’s failure to complete his units was due entirely to a lack of internet access or other circumstances that he would not have been aware of prior to the relevant census date or that were worse following the relevant census date.
To adopt the language used in Administration Guidelines, the Tribunal is not satisfied that the circumstances surrounding Mr Adamson’s failure to withdraw from the relevant units prior to the census date, and his failure to pass these units, constitute circumstances that were “beyond Mr Adamson’s control”. Further, based on the evidence, a situation did not occur which a reasonable person would consider is not due to Mr Adamson’s action or inaction, either direct or indirect, and for which he is not responsible. The situation here was not “unusual, uncommon or abnormal”.
Consequently, the Tribunal finds that “special circumstances”, as contemplated in s 104-25(2)(c) and s 104-30(3) of the Act, do not apply to Mr Adamson in relation to the units of study in dispute, being Study Period 2 and 4, 2012 Units.
DECISION
For the above reasons, the Tribunal affirms the decision under review.
I certify that the preceding 122 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh & Dr CN Kendall, Member ....(Sgd) A Tran....................................................................
Associate
Dated 12 March 2015
Date of hearing 18 February 2015 Representative for the Applicant
Self-represented
Representative for the Respondent
Mr S Maundrell
Department of Education
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