Thomson and Secretary, Department of Education, Skills and Employment
[2020] AATA 4672
•23 November 2020
Thomson and Secretary, Department of Education, Skills and Employment [2020] AATA 4672 (23 November 2020)
Division:GENERAL DIVISION
File Number(s): 2019/6599
Re:Zoey Alyce Thomson
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Mr Rob Reitano, Member
Date:23 November 2020
Place:Sydney
I affirm the decision of the Western Sydney University made on 23 September 2019 refusing to re-credit Ms Thomson’s Student Learning Entitlement.
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Mr Rob Reitano, Member
CATCHWORDS
HIGHER EDUCATION – application for re-credit of Student Learning Entitlement – outside application period – whether possible for application to be made in time – decision under review affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 79-1, 79-5, 79-10, 79-15
CASES
Brown and Secretary, Department of Education and Training [2015] AATA 518
Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 824
Williams v Secretary, Department of Education and Training [2016] AATA 377
REASONS FOR DECISION
Mr Rob Reitano, Member
23 November 2020
This case is concerned with why students need to take care in their dealings with educational institutions at the time they withdraw from courses so that they do not retain Higher Education Contribution Scheme Higher Education Loan Program (HECS-HELP) debts associated with those courses which they may not be able to do anything about when the debt becomes repayable often many years later. This is because the Higher Education Support Act 2003 (Cth) (Act) imposes a strict time limit with a very limited exception to that time limit on the making of applications to have any HECS-HELP debt waived.
On 1 August 2019, Ms Thomson made an application to the Western Sydney University (University) to have her HECS-HELP debt, otherwise known as her Student Learning Entitlement (SLE), waived under s.79-1(1)(c) of the Act in respect of various units of study in the higher education course known as the Bachelor of Social Science.
On 9 August 2019, the application was declined by the University. On 23 September 2019, the decision declining the application was affirmed following an internal review.
On 14 October 2019, an application for review of the University’s decision was filed with the Tribunal.
I have decided to affirm the decision under review and what follows are my reasons for making that decision.
BACKGROUND
There was not a great deal of dispute about the facts with a few important exceptions to which I will refer to where necessary. In general, Ms Thomson was generally a truthful witness who did her best to recall events and explain her conduct even though those events and that conduct occurred very many years ago.
In early 2011, Ms Thomson enrolled in some courses at the University. Ms Thomson concedes that she enrolled in four units of study which she was to undertake in the Autumn semester, but she says she did not enrol in two particular units of study that she was to undertake in the Spring semester. Those two units of study were identified by numerical codes 101556 and 101557 and the names ‘The Geographies of Social Difference’ and ‘The Individual in Society’. I will refer to these two units of study as ‘the disputed units.’
On 5 February 2011, an email was sent to Ms Thomson (although it referred to her by her student identification number) which said that she was as of that day enrolled in the disputed units which were to be undertaken in the Spring semester. The email said that because Ms Thomson had not provided her tax file number on the Electronic Commonwealth Assistance Form (ECAF), she would be required to pay her full tuition fees by the census date. The email also said if she wanted to defer payment to the Australian Taxation Office (ATO), she would need to complete a new ECAF by the census date.
On 3 March 2011, another email was sent to Ms Thomson which included a lodgement receipt that indicated Ms Thomson had by then submitted an ECAF with a tax file number. It again identified all of the units of study that Ms Thomson had enrolled in which included the disputed units.
Ms Thomson when asked about these two emails unsurprisingly had no recollection of them because they were emails that were nearly 10 years old. In the course of her evidence when asked about the emails and whether she accepted from those emails she enrolled in the disputed units, Ms Thomson said that she was at the time 18 years old, had two jobs and had not dealt with ‘any sort of paperwork and forms before really’. Despite having said those things she insisted she did not enrol in the disputed units.
Ms Thomson when asked about checking her email account and the regularity of her checking, frankly conceded it that she would have been accessing her email account at the time of the two emails and ‘obviously didn’t pick up on the fact that there were those two units’.
In view of the evidence, I find that Ms Thomson did in fact receive the emails of 5 February 2011 and 3 March 2011. I am unable to find that she in fact read them, or if she did read them that she understood them, but as will become clear that makes little difference to the view I take of the matter because having been notified of her enrolment, it was within her power to do something about that.
The Secretary also produced a form known as a Commonwealth Assistance Notice (CAN) dated 6 September 2011 containing Ms Thomson’s name and address which identified the disputed units and the liability arising from them. There was no evidence that the form was in fact posted, again unsurprisingly as the events occurred so long ago, but it appears likely to have been, given the address and the existence of an obligation to provide it to a student. Ms Thomson again, unsurprisingly, had no recollection of receiving the CAN. I find that more probably than not Ms Thomson received the CAN at some time in September 2011.
In relation to the emails and the letter I have referred to, Ms Thomson said that:
…I would say once I left the university, I probably didn’t read the letters, because I wasn’t with the university anymore and I guess I just, you know, didn’t read them. In regards to earlier ones, I mean without having a specific memory of receiving those emails. I would say I just didn’t really look at them properly, because I didn’t really – you know, I guess, like for me – sorry, I’m trying to think of how to word it – if I got a letter from the bank, I wouldn’t read the letter, you know, because I would sort of just be like, “It’s a letter from the bank” and I guess, I never picked up that those units were on there.
Ms Thomson also referred to the fact that she did not think it was possible to enrol in units ‘in advance’.
I find that Ms Thomson did enrol in the disputed units having regard to the documentary evidence, namely, the two emails and the CAN which are unlikely to have been generated if she had not. Ms Thomson is most likely mistaken about her recollection that she did not. Ms Thomson refers to the prospect of someone else having done so, but in my view that is highly unlikely. In any event, given the notice she had of her having been enrolled through the emails and the CAN that were all sent to her, she had the opportunity to ‘attack’ that enrolment through the facility of an application under the Act. I will return to this later.
The ‘census date’ for the purpose of the Spring semester in 2011 was 31 August 2011 and the ‘study end date’ was 4 December 2011.
On 1 August 2019, Ms Thomson applied to the University to have the debt ‘wiped’.
LEGISLATION
Section 79-1 of the Act provides:
79‑1 Main case of re‑crediting a person’s SLE
(1) A higher education provider must, on the *Secretary’s behalf, re‑credit a person’s *SLE with an amount equal to the *EFTSL value of a unit of study if:
(a) the person has been enrolled in the unit with the provider; and
(aa) the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; and
(ab) the unit does not wholly consist of *work experience in industry; and
(b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and
(c) the provider is satisfied that special circumstances apply to the person (see section 79‑5); and
(d) the person applies in writing to the provider for re‑crediting of the SLE; and
(e) either:
(i) the application is made before the end of the application period under section 79‑10; or
(ii) the provider 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.
Note: A HECS‑HELP debt relating to a unit of study will be remitted if the SLE in relation to the unit is re‑credited: see subsection 137‑5(4). In addition, it is a condition of the higher education provider’s funding under Part 2‑2 that payments for the unit must be repaid: see section 36‑20.
(2) If the provider is unable to act for any one or more of the purposes of subsection (1), or section 79‑5, 79‑10 or 79‑15, the *Secretary may act as if any one or more of the references in those provisions to the provider were a reference to the Secretary.
(The underlining has been added)
Section 79-5 of the Act provides:
79‑5 Special circumstances
(1) For the purposes of paragraph 79‑1(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:
(a) are beyond the person’s control; and
(b) do not make their full impact on the person until on or after the *census date for the unit of study in question; and
(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
(2) The Student Learning Entitlement Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.
Note: Guidelines made for the purposes of this subsection also have effect for the purposes of subsection 36‑22(4) (repayments etc. for work experience units) and subsection 104‑30(2) (re‑crediting a person’s FEE‑HELP balance).
Section 79-10 of the Act provides:
79‑10 Application period
(1) If:
(a) the person applying under paragraph 79‑1(1)(d) for the re‑crediting of the person’s *SLE in relation to a unit of study has withdrawn his or her enrolment in the unit; and
(b) the higher education provider 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 subsection (1) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.
(The underlining is added)
Section 79-15 of the Act provides:
79‑15 Dealing with applications
(1) If:
(a) the application is made before the end of the application period under section 79‑10; or
(b) the higher education provider 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;
the provider must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision on the application.
(2) The notice must include a statement of the reasons for the decision.
Note: Refusals of applications are reviewable under Part 5‑7.
It is unnecessary to say much more about the scheme of legislative prescription concerning how the HECS-HELP scheme operates because the issue here is about Ms Thomson’s application to have her HECS-HELP debt re-credited to her. The only basis upon which that can be done is under s.79-1 of the Act.
SECTION 79-1
Section 79-1 sets out the requirements that must be met in order for a Student Learning Entitlement to be re-credited and each one of them must be satisfied. There is no discretion involved that would allow any of the requirements to be waived.
An essential requirement for the re-crediting of a Student Learning Entitlement which applies in this case is that which is found under s. 79-1(1)(e). There are two alternative ways in which that requirement can be satisfied. I will deal with them in turn.
WAS THE APPLICATION IN TIME?
First, it can be satisfied by the mechanism in s.79-1(e)(i) and s.79-10(2) which requires that the application is made before the end of the period referred to in s.79-10 which ‘is the period 12 months after the end of the period during which the person undertook , or was to undertake, the unit’.
In this case, no application was made before 4 December 2012 which was the end of the period 12 months after the disputed units were to be undertaken. It follows that the application made on 1 August 2019 was not within the required time frame such that this aspect of the requirement is not made out.
WAS IT POSSIBLE TO MAKE THE APPLICATION IN TIME?
Second, it can be satisfied by the means referred to in s.79-1(1)(e)(ii) which is that ‘the provider 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’.
The question is what the phrase ‘not possible for the application to be made’ means where it appears in s.79-1(1)(e)(ii). The starting point is the ordinary grammatical meaning of the words ‘not possible’. The word ‘possible’ usually means something that is capable of being done or happening. There is nothing in the context of the words of s.79-1(1)(e)(ii) that would appear to displace the ordinary grammatical meaning of them. There is nothing in the objects or purpose of the Act that would suggest that the words should be accorded some different or other meaning.
The ordinary grammatical meaning has been considered in some of the cases before the Tribunal. In Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 824 at [25], the Tribunal said that ‘the plain and ordinary meaning of the word “possible” is whether something is capable of being done’. In Brown and Secretary, Department of Education and Training [2015] AATA 518 at [35], the Tribunal said ‘For something not to be possible would require a very serious constraint to be placed on a person’s ability to act...’.
That meaning was picked up and applied in Williams v Secretary, Department of Education and Training [2016] AATA 377 (Williams) at [102] where it was found that it was not possible for Mr Williams to comply with the 12 month time limit because it ‘was beyond his capacity due to a mental condition or the effects of the medication taken for it’. This was against a substantial body of medical evidence going to Mr Williams’ condition. Williams is instructive also as to the general approach to the question of what is ‘possible’:
[50] Whether something is possible also depends on the circumstances of each particular case, and the individual concerned.
[51] It is to no avail to say that what is possible is an objective test without some adjustment for individual circumstances. Something may be possible for one person but not for another. It may not be possible for someone to do because of a physical or mental condition.
[52] No firm rules can be laid down in advance on these various matters. It should not be assumed that it is possible for someone to do something simply because there is nothing physically preventing them from doing it or because it is possible for others to do it.
These kinds of cases confirm that the approach to the question of whether it is possible to have made an application will inevitably require a finding that an application could not have been made because of some incapacity whether mental or physical, and not necessarily confined to medical conditions, to make the application at all.
Also, the cases confirm that the approach to the issue whilst generally an objective one will have regard to the particular subjective circumstances that applied which established the relevant barrier to the possibility of making an application. The circumstances of a given case will be relevant to that extent, but otherwise the question must be objectively approached otherwise the test would easily be met as this case illustrates: a person who did not read their email would easily satisfy the requirement by saying ‘it was not possible because I did not know’.
There is no issue that Ms Thomson had the capacity in a mental and physical sense to make the application before 4 December 2012. Ms Thomson says that it was not possible for her to make the application because she was unaware of the fact that she was enrolled in the disputed units. This is not a case where there is said to be some identifiable mental or physical incapacity like Williams and nor is it a case where it is accepted and agreed that the applicant had no relevant notice of the existence of the enrolment in courses or of the debt. So far as the latter is concerned the case is quite the opposite. Ms Thomson was given the notice, but either did not read it or, perhaps, did not read it properly.
This case involves an assessment of circumstances where someone has either simply ignored information provided or sent to them, or not taken enough care to avail themselves of the opportunity to take notice of the information when it was provided to them.
I have found earlier that Ms Thomson more probably than not received the emails that were sent to her on 3 February 2011 and 3 March 2011 and the letter of 6 September 2011. That she did not read what was sent to her by the University in which she was, or had been, enrolled in a course of study is not in an objective sense sufficient to take away from the fact that she had notice of her enrolment in the disputed units. It was possible for her to make the application within time because she was armed with the information within that time period that would allow her to make that application if she wished to do so. Her failure to take notice of it does not mean it was ‘not possible’ for her to do something about it in the sense that she was incapacitated or prevented from making an application.
I am unable to find that it was not possible for Ms Thomson to have made the application before 4 December 2012 which was the last day on which she could have made the application in time. It follows that Ms Thomson cannot satisfy the requirement in s.79-1(1)(e)(ii) of the Act to permit re-crediting her SLE. It is unnecessary to consider whether Ms Thomson satisfies the other requirements of s.79-1 because satisfaction of all of the requirements is a precondition to re-crediting the entitlement.
CONCLUSION
I affirm the decision of the Western Sydney University made on 23 September 2019 refusing to re-credit Ms Thomson’s Student Learning Entitlement.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member
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Associate
Dated: 23 November 2020
Date of hearing: 10 August 2020 Applicant: Self-represented Solicitors for the Respondent: Ms K Mihalic, HWL Ebsworth Lawyers
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