Tursunbek and Secretary, Department of Education
[2023] AATA 2483
•11 August 2023
Tursunbek and Secretary, Department of Education [2023] AATA 2483 (11 August 2023)
Division:GENERAL DIVISION
File Number: 2022/6657
Re:Ceylan Tursunbek
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:11 August 2023
Place:Sydney
The reviewable decision is affirmed.
................................[sgd].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
HIGHER EDUCATION SUPPORT – HECS-HELP debt – application for re-crediting – whether the application for remission of the HECS debt was made before the end of the application period – whether the requirement that the application be made before the end of that period on the ground that it was not possible for the application to be made before the end of that period should be waived – reviewable decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth)
Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (Cth)
CASES
Brown and Secretary, Department of Education and Training [2015] AATA 518
TYJD and Secretary, Department of Education Skills and Employment [2021] AATA 2184
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
11 August 2023
Introduction
The Applicant, Mrs Ceylan Tursenbek, is seeking remission of an HECS-HELP debt incurred for four units of study she enrolled in and withdrew from in the 2004 Autumn Session. She claims that she was unaware of the debt until she lodged her tax return last year. Before that she was not working. She has two young daughters to care for.
She applied for remission to the Western Sydney University (the University) on 9 March 2022. Her application was refused on 19 May 2022 for the following reasons:
Unfortunately, your application is not eligible for consideration as it was
submitted after the final date of submission and you did not demonstrate
circumstances which allow the University to consider a late application.
Applications for withdrawal without academic or financial penalty must
be submitted within 12 months of the date of withdrawal for the relevant
subject or, if you have not withdrawn, twelve months after the end of session.
She appealed to the University. On 9 August 2022 her appeal was dismissed. The University confirmed that applications for withdrawal without penalty are to be lodged within 12 months of the end of the teaching session and the applicant had not provided any evidence or supporting documents that met the criteria for late submission of the application.
On 11 August 2022 she applied to the Tribunal for review of that decision.
Relevant legislation
The Respondent, the Secretary, Department of Education, changed its position as to what the relevant legislation was, between preparing its Section 37 Statement and submitting its Statement of Facts Issues and Contentions but said the provisions are to the same effect.[1] I am satisfied that its change of position was correct. The relevant provisions of the Higher Education Support Act 2003 (Cth) (the Act) are those that were in force prior to the introduction of the Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (Cth). The transitional provisions of that Act had the effect that the amendments applied in relation to units of study with census dates on or after 1 January 2012.[2] This case is concerned with units of study with a census date of 31 March 2004.
[1] Section 37 Statement, T documents p 10.
[2] Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (Cth), Schedule 2, item 38.
The issues in this case arise from section 79-1(1) of the Act which provides:
79-1 Main case of re-crediting a person’s SLE (student learning entitlement)
(1) A higher education provider must, on the *Secretary’s behalf, re-credit a person’s *SLE with an amount equal to the *EFTSL[3] value of a unit of study if:
[3] Equivalent Full-Time Student Load (for a year).
(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.
The issues
The requirements of the provision are cumulative. It is not in dispute that subsections 79-1(1)(a), (aa), (ab) and (b) and (d) are met.
The issues are whether the requirements of subsections (c) and (e) are met. I will address the issues arising under subsection 79(1)(e) first as it is a threshold issue. If that provision is not satisfied, it is unnecessary to consider whether special circumstances apply to the Applicant.
Section 79-10 – the application period
The application was not made before the end of the application period under section 79-10, whether subsection 79-10(1) or (2) applies. Section 79-10 provides:
(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 University provided a letter dated 13 September 2022 and attachments in response to a request for information issued by the Respondent. Some of the requested information was not available because of the length of time since the period of study. The information that was provided shows the following:
·The Applicant submitted her Resignation Application for her course on 23 April 2004, after the Census Date of 31 March 2004. There were no supporting documents.
·The four units of study were recorded as discontinued on 28 May 2004.
The Respondent contended that the Applicant was notified that her withdrawal had taken effect on 28 May 2004, relying on a table provided by the University.[4] The table does not show the date the Applicant was notified. It shows that the units of study were discontinued on 28 May 2004.
[4] T documents page 21 and 156.
The University also provided the following record for the Applicant (sensitive information deleted)[5]:
TRIM
Student Note Report
Student Notes - Enrolments & Student Finance - …
Student ID …
Record Number …
Date Created 23/04/2004 Date Registered 24/09/2008
Maria - Parra SC - 23/04/04 Received Resignation Application for Course 2550 - Bachelor of Business (HRM&IR) after HECS Sensus date Send to Enrolments Linda Dicmanis for processing NO supporting docs attached 28/5/2004 - E grade aut 04. No supporting docs. Letter sent. Linda Dicmanis E&SF.
[5] T documents page 25.
Other “TRIM” records were provided with the same registration date, ‘24/09/2008’. I infer that was the date records were transferred onto the TRIM system. I accept that on 28 May 2004 Ms Dicmanis, who worked in the Enrolments & Student Finance area of the University, sent the Applicant a letter notifying her that her courses had been discontinued.
Therefore, pursuant to subsection 79-10(1)(b) of the Act, the application period was 12 months after the day specified in the notice, 28 May 2004, ending on 27 May 2005.
Alternatively, if the application period is determined pursuant to subsection 79-10(2) of the Act, according to the University’s Dateline for 2004, the end of the period during which the Applicant was to undertake the units was the end of the week beginning 28 June 2004.[6] Therefore the period for the application to be lodged ended on or around 5 July 2005.
[6] T documents page 20.
In any event, the Applicant lodged her application after the application period.
The next question is whether to waive the requirement that the application be made before the end of that period on the ground that it was not possible for the application to be made before the end of that period, pursuant to section 79-1(e)(ii) of the Act.
The Applicant’s evidence
The following is a summary of the Applicant’s evidence on this issue that was provided to the University and to the Tribunal.
It was not possible to make the application before the end of the period because of her mental state, substance abuse, travelling overseas with her family in September 2004, her subsequent marriage while overseas and abuse she suffered from her husband over several months upon returning to Australia in March 2005, followed by her attempts to have her husband deported by complaining to the immigration department. She travelled overseas to obtain a divorce.
She was not processing information properly at the time. Her circumstances did not allow her to make ‘achievable and acceptable decisions’. She was not in any mental or emotional state to realise that after withdrawing from the units of study, she had to complete and lodge an application for remission within the 12 month period.
The Applicant emphasised that had she known that after withdrawing from the units of study she had to file an application for remission straight away or within 12 months, she would have. 2002 to 2006 was a period of her life she would like to forget.
She has attempted to obtain her medical records for that period. She provided correspondence from the relevant medical practice dated 12 October 2022 which states that there are no medical records available because they are only required to be retained for seven years from the last date of entry. The correspondence stated that the Applicant had not been to the practice for quite some time, possibly over 10+ years.
The Applicant provided her international movement records which showed the following:
·Departed 17 September 2004
·Arrived 6 March 2005
·Departed 16 February 2006
·Arrived 18 May 2006
Consideration
The phrase ‘not possible’ is a high threshold to satisfy. It has been held to require consideration of whether something is unachievable or unattainable.[7] It has also been held to require a very serious constraint on a person’s ability to act.[8] It requires more than simple neglect.[9]
[7] TYJD and Secretary, Department of Education, Skills and Employment [2021] AATA 2184 at [27]
[8] Brown and Secretary, Department of Education and Training [2015] AATA 518 at [35].
[9] Ibid at [37].
It is implicit in some of the Applicant’s formulations of the reasons for not applying within the 12 month period was that she did not know that she had to.
The UWS Calendar 2004 (the Calendar) states at [100] that students enrolling in HECS liable courses of study must submit a completed HECS Payment Options Declaration Form when enrolling in a course for the first time and if that is not done, the student will not be enrolled.[10] It states at [101] that students who intend to defer their HECS liability, have to include their Tax File Number.[11]
[10] T documents page 19.
[11] T documents page 19.
It is clear that the Applicant enrolled in HECS liable courses and deferred her HECS liability. It follows that she had submitted the necessary form and her Tax File Number (TFN) when she enrolled. Therefore, at that time, she was on notice that she had a HECS liability for the four units of study. Because she had provided her TFN when she enrolled, she became aware of the debt when she prepared her tax return last year.
‘Resignation (Withdrawal) from course’ is addressed in detail at paragraphs (190) to (200) of the Calendar. Paragraph 191 states:
Students who are considering resignation are strongly advised to discuss their situation with the Course Advisor or student counsellor to consider other alternatives or gain advice on withdrawal procedures.
The Calendar includes the following:
·resignation must be lodged in writing and sets out the procedures to be followed, including in the case of late submissions. In that case, ‘HECS liable students will incur a HECS liability’.
·students who submit late notifications of withdrawal for a course due to exceptional circumstances may submit supporting documentation and specifies the form in which any medical or professional support should be provided.
Paragraph [200] addresses remission of HECS liability:
Remission of HECS liability or a refund of HECS payments / tuition fees may be sought in exceptional circumstances, clauses (81-84 Refunds in Exceptional circumstances and clauses (115-118) Refund of HECS Payments. DEST require a proforma (available only from the Enrolments & Student Finance unit) which is normally sent to students with written notification of the processing of their "After census withdrawal". The Pro-forma is then returned to the Enrolments unit for a designated section to be completed by the University (DEST requirement) before being sent on to the student to lodge. The student has 12 months from the date the section of the Pro-forma is completed and forwarded to them by the University to be eligible to apply for the remission of HECS.
I infer that ‘DEST’ is the acronym for the Department of Education, Science and Training, the Department responsible for administering the Act at that time.
The file note created 23 April 2004 states that no supporting documents were provided (by the Applicant). While I accept that the file note shows that the Applicant was sent a letter notifying her that her courses had been discontinued, it does not mention that a ‘pro-forma’ was sent to the Applicant. There is no other evidence that it was. Paragraph 200 does not explain what ‘normally’ means. The statement in paragraph 200 that remission for HECS liability may be sought in exceptional circumstances leads to the question whether if exceptional circumstances were not claimed when application was made for resignation, as in the Applicant’s case, was the pro-forma ‘normally’ sent?
As stated above, the phrase ‘not possible’ is a high threshold to satisfy. Even if I accept that a ‘pro-forma’ was not sent, I am not satisfied that the consequence was that it was ‘not possible’ for the Applicant to lodge her application before the end of the application period. She had deferred her HECS liability. The Calendar clearly set out the consequences of withdrawing and the procedures that were to be followed. Each of the ‘Unit Outlines’[12] for the four subjects in which the Applicant enrolled emphasised the student’s responsibilities, including being familiar with all University rules, policies and processes related to their studies and referred to various resources. If the Applicant had inquired about her HECS liability, she would have become aware of what she had to do.
[12] T documents, at pages 47, 71, 98, 129.
Did the Applicant’s personal circumstances, as outlined above, make it not possible for the application to be made before the end of the application period?
The Applicant was an honest witness. She experienced challenging circumstances in 2004 to 2006 and has been trying recently to work, continue with her education and care for her children. 2004 is a long time ago. Her HECS debt reappearing at this time of her life has been a severe blow to her.
There is no corroborative evidence about the applicant’s medical condition during the application period because of the lapse of time. That she was capable of submitting her resignation application in April 2004 does not support a finding that it was not possible for her to have lodged her application for remission of the HECS debt after 28 May 2004 and before she left Australia in September 2004, accepting that her travel overseas and consequent abusive marriage made it not possible for her to do so thereafter.
Considering both those circumstances and accepting that she was not sent the Pro Forma, my conclusion is the same.
I am therefore not satisfied that that it was not possible for the application to be made before the end of the application period, as section 79-1(e)(ii) of the Act required. Therefore, the reviewable decision must be affirmed.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
.................................[sgd].......................................
Associate
Dated: 11 August 2023
Date of hearing:
5 July 2023
Applicant:
In person
Solicitors for the Respondent:
Mr A Downie, AGS
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