Stoner and Secretary, Department of Education and Training

[2019] AATA 2509

Stoner and Secretary, Department of Education and Training [2019] AATA 2509 (21 June 2019)

Division:GENERAL DIVISION

File Number(s):      2018/4031

Re:Jasmyn Stoner

APPLICANT

AndSecretary, Department of Education and Training

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:21 June 2019

Date of written reasons:        14 August 2019

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

............[Sgnd]...............................

Senior Member N A Manetta

CATCHWORDS

HIGHER EDUCATION SUPPORT – FEE-HELP- remission of debt – whether the applicant’s circumstances were beyond the applicant’s control – whether applicant’s circumstances made their full impact on or after the census date - whether special circumstances exist – decision under review affirmed

LEGISLATION

Higher Education Support Act 2003

SECONDARY MATERIALS

Administration Guidelines 2012

REASONS FOR DECISION

Senior Member N A Manetta

14 August 2019

1. At the conclusion of the hearing of this matter, I delivered my decision to affirm the decision under review and gave oral reasons for my decision.  The Applicant requested written reasons. 

2. I have reviewed the transcript of my reasons and have made minor amendments to it.  I formally adopt it as a written statement of my reasons in answer to the Applicant’s request.  I attach a copy of the transcript as amended.

I certify that the following sixteen (16) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

....[Sgnd]............................

Associate

Dated: 14 August 2019

Date of hearing:	18 June 2019
Applicant:	By telephone
Respondent’s Representative:	Mr L. Holcombe, HWL Ebsworth Lawyers, by telephone

ORAL DECISION OF SENIOR MEMBER N A MANETTA

1. SENIOR MEMBER:  I have considered this matter and have reached a decision.  Ms Stoner, I will not keep you in suspense.   You have unfortunately been unsuccessful in your application to the tribunal.  What I plan to do now is to read out my reasons.  You will be given a written copy of the formal direction to affirm the decision under review and you may request if you wish written reasons which will be provided to you.  I will then formally prepare those reasons and I reserve the right to amend what I am about to say in minor ways only to better reflect my intentions, but the substance of what I say now is my decision.  So I will begin that process now.

2. This is an application by Ms Jasmyn Stoner seeking a review of a decision taken in relation to her studies at the University of South Australia.  By that decision the University of South Australia refused an application by Ms Stoner to have her HECS-HELP debt remitted in respect of courses she failed in study period 2 and study period 5 of 2016 in her Bachelor of Social Work degree.

3. At the hearing before me, which was conducted by telephone, Ms Stoner represented herself.  Mr Holcombe appeared on behalf of the respondent.  Hearing the matter afresh on the evidence before me I must decide whether the debt should be remitted.  In my opinion the decision under review should be affirmed. I shall now set out the relevant facts and my reasons for this conclusion.

4. Ms Stoner was the only witness to give evidence before me.  Ms Stoner was born in July 1992 and finished her secondary schooling in 2010.  She first enrolled in TAFE at Port Adelaide studying community services.  Then in 2013 she enrolled in the University of South Australia's Bachelor of Social Work degree.  She gave evidence that it was a four year full-time course.  It was a harder course she said than the TAFE course, but by the end of the 2013 academic year she felt she was on top of it.  She passed her first year.

5. Her second year, 2014, started off well.  During 2014, however, she commenced a relationship with a man.  Although she did not live with him she stayed over at his house most of the time she said.  She gave evidence that he was jealous and controlling of her and that this behaviour first became apparent in mid-March 2014.  Notwithstanding his behaviour Ms Stoner persisted with the relationship.  She continued with her studies, but took some courses externally.  She failed one course.

6. She gave evidence that in June 2014 her partner became violent towards her.  She managed to pass all of her subjects that year except Psychology.  In October 2014 she fell pregnant to her partner.  She enrolled for a full-time semester in the first half of 2015.  By late January/February 2015 she had taken out what she called an AVO, an apprehended violence order, against her partner after an extremely violent episode.  She ceased contact with him definitively at that time.  He did not seek to contact her even though she moved only one street away.

7. In 2015 the pregnancy became complicated unfortunately.  Ms Stoner was expecting twins and she was hospitalised and flown to Brisbane for treatment in early 2015.  She lost one baby most unfortunately and the birth of the second baby on 29 July 2015 was difficult.  Her academic record shows she passed one subject but failed Psychology again. 

8. In 2016 Ms Stoner was enrolled for a number of subjects.  She accepted in evidence that she must have enrolled in late 2015 for the 2016 courses.  She did not attend her courses in 2016, but did not take any action to amend her enrolment.  Inevitably she failed.  She failed one course in early 2016 and four courses later in 2016.  She did not check her student email at all in 2016. 

9. Ms Stoner gave evidence that she forgot entirely that she was ever enrolled in the courses.  In mid-2017, however, she discovered that she had failed the 2016 courses.  Rather surprisingly Ms Stoner took no action at that time in respect of the fail grades she had received.  Her academic record for 2017 shows she passed all subjects she was enrolled in, in that year.

10. In February 2018 Ms Stoner realised the fail grades she had received in 2016 would impede her entry to another highly competitive degree she was interested in, a Bachelor of Social Sciences.  At that point she decided to do something about her fail grades.  She applied for what is called a “post-census” amendment to her academic record.  This was refused because her application fell outside the 12 month period applicable to the subjects in question.  Ms Stoner accepts that her application did fall outside the 12 month period in question.  So far as one subject is concerned the 12 month period ended on 2 July 2017.  So far as the remaining four subjects are concerned the 12 month period ended in November 2017.

11. Ms Stoner asked me to take into account the extreme stress she had suffered, both in respect of her violent domestic relationship, the loss of her child, and the difficult birth she had had in July 2015.  I accept also that notwithstanding there was no contact with her former partner from February 2015 onwards, a general anxiety and fear would have been part of her thinking and daily living.  I also accept that she had a gallbladder problem which was ongoing, as well as postpartum placental-retention medical problems.  I accept those factors, but there is no doubt in my mind that when she had learned of her failure in mid-2017 she was capable of liaising effectively with the university to work out what she needed to do to have the fail grades from 2016 rectified.  I bear in mind that she was functioning well enough to pass courses at the university in 2017.

12. As I am delivering my decision orally today I shall not set out the legislation.  It is sufficient to note that Ms Stoner cannot have an amendment made to her record if it was possible for her to make her post-census amendment application by 2 July 2017 in the case of one subject, and 26 November 2017 in the case of the other four.  I have no doubt that it was possible for Ms Stoner to make an application from July 2017 onwards, the time that she said she discovered her fail grades, to November 2017.

13. I accept she did not appreciate on 2 July 2017 the harm the fail grades would do to her GPA, or grade point average, and that this accounts for her decision at that time not to do anything about the matter.  That does not mean however it was not possible for her to make an application.  Indeed, had she appreciated the future significance of the fail grades on her plans to enrol in another degree she would, in my opinion, have made the application promptly at that time.

14. That seems to me to be very clear in the case of the four subjects that she took in study period 5 where the 12 month period expired in November 2017.  In respect of the single subject she took and failed in study period 2 of 2016, Social Work Field Education 1, the 12 month period expired, as I have said, on 2 July 2017.  Ms Stoner's evidence is that she only appreciated she had failed that subject in July 2017.  I accept that Ms Stoner first knew definitively that she had failed this subject in July 2017.  I must say however that I do not accept that she had until July 2017 no recollection that she had enrolled in that subject. 

15. I bear in mind here that Ms Stoner had been a student of the University in the degree since study period 2 of 2013 and had completed courses in the degree in 2013, 2014 and 2015 before enrolling in October 2015 for her 2016 subjects.  I do not accept that the stressors in her life were so extreme that she forgot entirely during the entire course of 2016 that she had enrolled in subjects in October 2015.  I accept that she had a number of significant stressors in her life, and I further accept that she may have wrongly assumed that if she did not attend courses she would not be considered to be enrolled; but I do not believe she had entirely forgotten about her enrolment.  After all she was in the middle of her degree, and in October 2015 was planning to go on with her studies in 2016.  In these circumstances I do not accept that it was not possible for Ms Stoner to file a post-census amendment application in the course of 2016 and up to mid-2017 in relation to the subject Social Work Field Education 1 where the 12 month period ended on 2 July 2017.

16. The power this tribunal has to reverse the HECS-HELP debt is limited in the same way as the University's.  Whatever difficulties Ms Stoner faced in 2016 I must refuse the application if I am satisfied that she was capable of making an application to the university during the 12 month period.  I wish to record that I was particularly impressed that Ms Stoner chose to continue with her studies after the highly stressful experiences described earlier in these reasons.  She should take courage that she has proven herself able to complete tertiary studies under very stressful circumstances that other students do not usually face.  I congratulate her on her successes to date and I wish her well in her future endeavours.  My formal decision however is to affirm the decision under review.

    END OF ORAL DECISION