Thomas and Department of Employment,Training and Youth Affairs - [2000] AATA 784

DECISION AND REASONS FOR DECISION [2000] AATA 784

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/468

GENERAL ADMINISTRATIVE DIVISION       )
           Re      COLIN ANTHONY THOMAS
  Applicant
           And    SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date6 September 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
EDUCATION - HECS debt – remission – HECS booklet and declaration discussed – mail problems considered – special circumstances considered – element of choice found
Higher Education Funding Act 1988 s.106L
Secretary, Department of Education, Training and Youth Affairs v Ellem [2000] FCA 695
Re Bryant and Secretary, Department of Education, Training and Youth Affairs (1999) 55 ALD 286
Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

6 September 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Colin Anthony Thomas (the applicant) for review of a decision of a delegate of the respondent dated 15 November 1999 (T19) which affirmed a decision of another delegate of the respondent dated 11 October 1999 (T15) not to remit the applicant's HECS debt for the second semester of 1999 in the amount of $852.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T47), together with nine exhibits, six lodged by the applicant (Exhibits A1-A6) and three lodged by the respondent (Exhibits R1-R3). In addition, the Tribunal heard evidence from the applicant, who represented himself. The respondent was represented by Ms J. Nunan, of counsel.
The sole issue before the Tribunal is whether or not the circumstances of this case are such that it is appropriate to remit part or all of the debt pursuant to sub-paragraph 106L(1)(b) or sub-section 106L(3) of the Higher Education Funding Act 1988 (the Act).
history of the application
The applicant enrolled in a Master of Environmental Studies program at Macquarie University (the University) on 5 March 1999. He completed a HECS Payment Options Declaration Form on 5 March 1999 (T39) indicating that he wished to defer payment of his HECS liability.
The University sent the applicant a letter dated 12 March 1999 (T35) which stated (inter alia):
"I am pleased to advise you that your application for conversion of tuition fees to HECS for your enrolment in the Postgraduate Certificate in Wildlife Management has been approved for first half year 1999.
I have informed the Fees Office that the conversion has been approved and that you have chosen the deferred option on your HECS Payment Option Form.
Please note that you are required to reapply every semester for a conversion of tuition fees to HECS. I am sending you an application form which you should complete and return, with new original documentation confirming receipt of a full living allowance at the maximum rate, if you are continuing your course next semester."
The applicant was never in fact enrolled in that certificate course in 1999.
The applicant completed an "Application for Change of Program of Study Postgraduate" form on 30 March 1999 (T36) in which he advised that he was not totally withdrawing from the course (question 1) and advised that he wished to withdraw from two first semester units (question 2).
In a memorandum dated 7 January 2000 (T32), Ms J. Monckton, Academic Program Coordinator, stated (inter alia):
"Mr Colin Thomas enrolled in March 1999 into the MEnvStud program, in 2 subjects in each semester. On 30 March he submitted a Change of Program form which I signed as Course Coordinator withdrawing himself from the two semester one subjects EPG915 and 916, but having ticked the box saying "No" to total withdrawal from the whole program. I verbally counselled him at that time that this meant he would remain enrolled in the semester 2 subjects so if he did not want to come back in semester 2 he would need to complete another Change of Program form by the end of August. To my knowledge although I cannot check this definitely now as both the convenors of the subjects are away on vacation (one overseas), Mr Thomas did not attend any lectures in EPG917 or 918 in semester 2. Since the lecturers did not report his non-attendance to me I did not contact Mr Thomas directly. I understand from the Academic program section that he would have received a notice of his enrolment in the two semester 2 subjects.
…"
The University sent HECS and Student Activities Fees bills to the applicant in August 1999 (T43). The University further sent a HECS liability notice in September 1999 regarding second semester liability (T43).
The applicant lodged a "Postgraduate Change of Program Form" dated 17 September 1999 (T37) indicating that he wished to totally withdraw from the program (question 1) and indicating discontinuance of two second semester subjects (question 2). On 20 September 1999 the applicant applied for remission of his 1999 HECS debt (T12) and stated (inter alia) in an attached letter (T11):
"…
I had become unemployed in February 1999 and was uncertain whether I would have to return to Adelaide (I moved to Sydney in June 1998) for financial reasons. With this in mind I applied for acceptance into a New Enterprise Initiative Scheme (small business development) in Adelaide where I would be able to afford to live with a member of my family. As I was keen to persist in attempting to obtain full-time employment in Sydney as originally planned, I deferred my acceptance until the following course commencing on October 11, 1999. To date I have only been able to secure casual or part-time work and will be returning to Adelaide shortly to commence the aforementioned NEIS course.
…
I did not receive such a letter from Macquarie University prior to August 31, 1999. The letter received by me on 16 September was the first and only letter received by me with respect to second semester enrollment [sic]. The specific details of my 'special circumstances' involve the likelihood that I did not receive the letter due to an error on the part of Australia Post.
I have had communication with Australia Post both via written correspondence and by telephone since December 1998 concerning problems encountered with mail delivery to my address at 3/15 Station Street, Dundas, 2117. Specifically, I have had several instances of mail not being received at my address when I had known that the letters, including legal documents, were sent, delays in delivery of mail, receipt of other people's mail (including a letter addressed to a different person in a different suburb), problems with delivery of registered mail, mail re-directed to me from the wrong address, and other allied problems.
…"
The delegates of the respondent determined that there were no circumstances beyond the applicant's control which prevented him from withdrawing before the census date (being 31 August 1999 in this case).
applicant's evidence and submissions
The applicant told the Tribunal that he could not recall any officer of the University suggesting to him on 30 March 1999 that he would need to complete another form in the second semester if he was not continuing. He stated that he did not receive his student fees bills due to an Australia Post error. He referred to the various letters that he has traded with Australia Post in support of this contention. He further stated that he did not receive a HECS bill as no such bill was generated because he was deferring his HECS payments.
He stated that since he did not receive his student services fees notice, he was unable to correct any wrong information. He further stated that the audit notice (Exhibit A4) was sent subsequent to the census date and was therefore of no assistance in ensuring he corrected his details prior to the census date. He also stated that he did not know that he had to withdraw from the second semester subjects by the census date, and did not know that one needed to withdraw so quickly once one had decided not to continue with a course of study.
He told the Tribunal that his return from Sydney to Adelaide was a special circumstance, and that he moved to be with his partner, and because of financial problems making it untenable to continue living in Sydney. He further told the Tribunal about the difficulties he had securing work after he changed jobs and found that the new job did not meet expectations, meaning that he had to leave after one month. He stated that in April 1999 he applied for the New Employment Incentive Scheme (NEIS) training course commencing in Adelaide in August 1999 but that he then deferred acceptance into that course until mid-September 1999 to leave himself options.
He told the Tribunal that from February 1999 onwards, he did not have consistent income, but worked on a number of weekends as a photographer.
He stated that he would have only given the HECS booklet a quick look through, and that he could not recall reading the declaration (T39) fully.
respondent's submissions
Ms Nunan submitted, on behalf of the respondent, that the applicant should have known that he had to withdraw by the census date and that when considered objectively, it was the applicant's decision and choice to leave Sydney. She submitted that there must have become a time where the applicant was aware of the need to withdraw, but did nothing about it.
She submitted that it cannot be said that the full impact of the applicant's alleged special circumstances arose after the census date.
discussion and findings
Sub-sections 106L(1) and (3) of the Act provide (inter alia):
"106L(1)The Secretary may, in writing, remit the whole or part of a person's HEC semester debt if:
(a)the person has not completed the course requirements for his or her course of study in respect of a semester during the semester or during the year in which the semester occurred; and
(b) the Secretary is satisfied that special circumstances apply to the person (see subsection (3)); and
…
(3) For the purposes of this section, special circumstances, in relation to a person, include circumstances that the Secretary is satisfied:
(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 course of study for the semester or the study period (as the case requires); and
(c) make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs, or the units of study for which he or she was enrolled for the study period (as the case requires).
…"
The Tribunal notes the recent Federal Court case of Secretary, Department of Education, Training and Youth Affairs v Ellem [2000] FCA 695, in which the relationship between sub-sections 106L(1), (3) and (3A) of the Act was canvassed. Lindgren J in the decision also discussed the applicability (or otherwise) of the relevant guidelines issued by the Secretary. It is clear that in the broader context of section 106L of the Act, "special circumstances" is intended to encompass the sub-section 106L(3) factors, but not be limited by them. This Tribunal is regularly indicating that all "special circumstances" cases must be weighed on their merits, and there is clearly no set formula to follow with regard to the existence (or not) of special circumstances.
At paragraph 38 of Ellem, Lindgren J states:
"38. A person may choose not to complete a course on account of circumstances as multifarious as human experience allows. Examples are: sudden and unforeseeable family or economic exigencies; a change in professional qualification requirements; a change in the teaching staff of the institution of higher education; a developing appreciation by the person that the course is not well adapted to his or her needs or desires; a developing appreciation by the person that he or she is not well equipped to undertake the course. In some circumstances the voluntary element will be so dominant that it could not reasonably be suggested that special circumstances apply to the person, as where the person simply decides, as a matter of "preference", not to complete the course. In other cases, the pressure of external circumstances on the person may be almost irresistible, such as circumstances associated with a death or terminal illness in the person's family. The point is that there is a continuum on which sets of circumstances can be placed according to the degree to which circumstances within the person's own control, or external circumstances beyond his or her control, are properly to be seen as causative of his or her non-completion of the course requirements, and it is a misconception to think that "special circumstances" cannot apply to the person whenever it can be said that an element of his or her decision-making is involved."

The Tribunal accepts that in the present case, the applicant had difficulties with receipt of mail, and that this was a complicating factor in 1999. On the material presented to the Tribunal, it is clear that Australia Post recognised a number of problems with his particular delivery area. In the Tribunal's assessment however, the mere fact that the applicant may or may not have received certain letters is not of itself indicative of the existence of special circumstances. The applicant contends that he did not receive the student services bill or a HECS liability statement until September 1999, at which point he took action. It appears from the correspondence from the University in response to Ms Nunan's enquiries, that bills for HECS and student activities fees were in fact sent in August 1999 (T43). The applicant may or may not have received these bills.
Notwithstanding this fact, the Tribunal considers that the applicant was aware of his continuing enrolment for second semester 1999. He made a conscious choice in March 1999 to only withdraw from first semester subjects in order to keep his options open. This choice is evident in his application for change of program of study (T36) wherein he indicates that he is not totally withdrawing, and further indicates withdrawal from only first semester subjects. Whilst the applicant could not recall being advised by Ms Monckton (T32) as to his ongoing second semester enrolment, the Tribunal has no reason to doubt that such information would have been given at the time or that Ms Monckton has provided an accurate statement of the advice she probably gave.
Moreover, the applicant did in fact sign a declaration that he had read the "HECS: Your Questions Answered 1999" booklet (the HECS booklet) (T30). Significantly, that booklet states (inter alia):
"The HECS census dates for standard 1999 first and second semesters are:
First Semester:         Wednesday 31 March
Second Semester:     Tuesday 31 August
If you are enrolled in a course on the census date you will have to pay HECS. All HECS payment arrangements must be finalised by this date or before.
…
5.WHAT HAPPENS IF I WITHDRAW OR I DON'T COMPELTE MY SEMESTER STUDIES?
…
WHAT HAPPENS IF I DON'T ATTEND ANY CLASSES, WILL I STILL HAVE TO PAY HECS?
If you are enrolled on the census date you will have to pay HECS regardless of whether or not you attend any classes.
WHAT HAPPENS IF I WITHDRAW BEFORE THE CENSUS DATE?
If you complete your formal withdrawal from any unit with the university's central student administration prior to or on the census date you will not owe HECS for that unit for that semester. But remember:
·You should withdraw in writing or in the form required by your institution and allow time for delivery and processing. You should keep a copy of your withdrawal letter.
·You should not confuse the HECS census date with the academic withdrawal date (the date set by your institution as the final day that a student can withdraw from a unit without incurring academic penalty, ie a recorded fail grade) as these two dates are usually different.
…
If you have paid your whole semester liability up front or if you have made a partial payment to your institution against your HECS liability for the semester, you may write to your institution to seek a refund of your payment.
WHAT IF I WITHDRAW AFTER THE CENSUS DATE?
If, after the census date, you become seriously ill or other special circumstances occur and you are unable to continue your studies, you can apply to have your HECS debt for the semester reduced or removed.
Please note, however, that if you have completed a unit of study, you are not eligible to apply for a remission of your debt for that unit.
You must advise the central student administration office of your institution in writing that you wish to withdraw from your unit(s) of study or course(s).
…
3.        If you deferred your total liability to the taxation system
You will need to apply to DEETYA for remission of your debt for the semester. Procedures and time limits for making an application for remission of HECS debt are detailed below. Do not apply to the Tax Office.
…"

Whilst the Tribunal appreciates that the practicalities of enrolment often mean that the HECS booklet is only given scant attention by students, the applicant did nevertheless sign a declaration to the effect that he read it and understood his obligations. The Tribunal would note in passing that it may be appropriate for the Department to consider instituting some policy whereby university officers administering the enrolment process ensure that students are alerted to the significance of both the booklet and the declaration.
In these circumstances, whether or not the applicant received the subsequent letters, he had been made aware, by his own declaration, that he had to withdraw in writing by the census dates. The census dates had further been highlighted to him. Any subsequent letters would have only had the effect of reminder notices.
This case is distinct from Re Bryant and Secretary, Department of Education, Training and Youth Affairs (1999) 55 ALD 286 in that there is no confusion flowing from the HECS booklet in this case.
The Tribunal must then consider the reasons for withdrawal, and whether or not there are reasons that could be said to be special so as to warrant the exercise of its discretion pursuant to section 106L of the Act. The phrase "special circumstances" has been considered in many previous Tribunal cases, and the Tribunal finds it unnecessary to discuss its meaning at length in the present matter. The Tribunal adopts the meaning given to the phrase in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 and followed in many subsequent cases. The Tribunal notes the inclusive provisions of sub-section 106L(3) of the Act, but also takes into account the broader discretion conveyed by sub-section 106L(1) of the Act.
The applicant made reference to his partner moving back to Adelaide, and to his straightened financial circumstances. He also referred to the difficulty in obtaining suitable employment in Sydney, and to the availability of a NEIS program in Adelaide. The applicant was somewhat circumspect in his evidence as to his earnings in the relevant period, indicating some continuing part-time work, and some weekend photography work in particular. He stated that when he worked as a photographer on five to six occasions, he cleared about $500-600 on each occasion. He was also in receipt of Newstart Allowance, but contended that the Newstart Allowance was equal to rent commitments. The Tribunal appreciates that the financial circumstances were straightened. Given the applicant was somewhat circumspect in detailing his earnings to the Tribunal however, there is an element of ambiguity involved in assessing what his actual situation may have been. On the evidence before it, the applicant was at the very least in receipt of Newstart Allowance and some supplemental income at times. The Tribunal concurs with Ms Nunan that the applicant's financial situation is better than a lot of applicants this Tribunal encounters. He was not in a parlous financial situation.

The applicant's partner returned to Adelaide on 30 August 1999, having resigned on 23 August 1999, and secured work in Adelaide to commence on 6 September 1999 (T18). Whilst the Tribunal appreciates that the separation caused the applicant some anxiety, they had made a choice that he would stay in Sydney to attempt to secure work. Bearing in mind Lindgren J's comments in Re Ellem, as outlined above, and the numerous special circumstances cases dealt with by this Tribunal, the Tribunal does not consider that the subsequent stress and anxiety as a result of his partner leaving constitutes "special circumstances" either in relation to the sub-section 106L(3) factors or in relation to the sub-section 106L(1) discretion. Whilst it would have been a difficult time, such separation anxiety is not so unusual, uncommon or exceptional so as to warrant waiver of a debt. There was also a degree of choice and voluntariness about the applicant's decisions at the time.
The applicant was in a position prior to the census date whereby he was aware that his partner was returning to Adelaide. He was also aware of his financial circumstances prior to the census date, and there is no dramatic change in his financial situation from before to after the census date. He had also signed a declaration that he had read the HECS booklet, and was aware of his obligations as regards the census date. Further to that, prior to the census date he had deferred his Adelaide based NEIS training program until October 1999, indicating that he was contemplating a possible return to Adelaide well before the census date.
Whilst the Tribunal appreciates the applicant's mail difficulties, for the reasons outlined above, there are factors vitiating the importance of such difficulties.
Accordingly, although the Tribunal appreciates that the applicant was in a position of some difficulty, it finds that his circumstances are not special within the meaning of either sub-section 106L(1) or (3) of the Act.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  8 August 2000
Date of Decision  6 September 2000
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Ms J. Nunan
Solicitor for the Respondent    AGS