TYJD and Secretary, Department of Education, Skills and Employment
[2021] AATA 2184
•8 July 2021
TYJD and Secretary, Department of Education, Skills and Employment [2021] AATA 2184 (8 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/4449
Re:TYJD
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:8 July 2021
Place:Sydney
The decision under review is affirmed.
.......................[SGD].................................................
Dr L Bygrave, Member
CATCHWORDS
HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-crediting – where the applicant did not apply for remission of debt before the end of the application period – whether requirement to apply within the application period should be waived – whether it was not possible for applicant to make the application within that period – whether special circumstances apply to the applicant – where it is found that it was possible for the applicant to make the application within the application period – decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth)
Higher Education Support Act – Administration Guidelines 2012
REASONS FOR DECISION
Dr L Bygrave, Member
8 July 2021
INTRODUCTION
On or about 22 April 2020, the applicant submitted an application to the Australian Catholic University (ACU) for remission of her HECS-HELP debt pursuant to subparagraph 36-20(1)(e)(ii) of the Higher Education Support Act 2003 (Cth) (the Act) for the following units of study:
(a)Semester 1, 2014: PSYC100 – Foundations of Psychology with an Equivalent Full-Time Student Load (EFTSL) value of 0.125 and a census date of 31 March 2014;
(b)Semester 1, 2014: SWTP308 – Introduction to Social Work with an EFTSL value of 0.125 and a census date of 31 March 2014;
(c)Semester 2, 2014: PSYC101 – Applications of Psychology with an EFTSL value of 0.125 and a census date of 31 August 2014;
(d)Semester 2, 2014: ARTS241 – 2D Studies 2 with an EFTSL value of 0.125 and a census date of 31 August 2014; and
(e)Semester 2, 2014: ARTS228 – Art and Design History and Theory 3 with an EFTSL value of 0.125 and a census date of 31 August 2014.
ACU, both initially and on review, refused the applicant’s application on the basis that she did not lodge her application for re-credit and remission of fees within the relevant 12 month period set out in the Act, and did not provide sufficient evidence to demonstrate it was not possible for her to submit the application within this period.
On 22 July 2020, the applicant made an application for review of the decision by ACU to the General Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard by the Tribunal in Sydney on 28 June 2021; the applicant attended the hearing and provided oral evidence by videoconference.
RELEVANT LEGISLATION
HECS-HELP is a loan scheme to help eligible students pay their student contribution amounts through a loan or upfront discounts. Pursuant to section 87-1 of the Act, a student may be entitled to HECS-HELP assistance based on their student contribution amounts for units of study, less any upfront payments. The assistance is paid to a higher education provider to discharge the student’s liability to pay their student contribution amounts.
A person can apply to a higher education provider for the remission of their HECS-HELP debt in respect of a unit of study under section 36-20 of the Act. Subsection 36-20(1) of the Act sets out the circumstances in which a higher education provider must determine that section 36-20 applies.
Relevant to this matter, paragraphs 36-20(1)(d), (e) and (f) of the Act provide:
(d) the provider is satisfied that special circumstances apply to the person (see section 36-21); and
(e) the person applies in writing to that provider for either or both:
(i) the repayment of any amounts that the person paid in relation to his or her *student contribution amount for the unit; or
(ii) the remission of the person’s *HECS-HELP debt in relation to the unit; and
(f) either:
(i) the application is made before the end of the application period under section 36-22; 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.
Section 36-22 of the Act defines ‘application period’ as follows:
(1) For the purposes of subparagraph 36‑20(1)(f)(i), if:
(a)the person has withdrawn his or her enrolment in the unit of study; 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.
Subsection 36-20(2) of the Act states that, if section 36-20 applies, the higher education provider must both pay the person the amount of their student contribution of the unit of study and pay the Commonwealth an amount equal to the HECS-HELP assistance the person was entitled for the unit.
Subsections 36-21(1) and (2) of the Act provide that:
(1) For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:
(c)are beyond the person’s control; and
(d)do not make their full impact on the person until on or after the *census date for the unit of study; and
(e)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 Administration 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.
As required by subsection 36-21(2) of the Act, I consider the Administration Guidelines 2012 (the Guidelines): chapter 3 of the Guidelines specifies the following circumstances in which a higher education provider will be satisfied that ‘special circumstances’ exist:
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
3.10.1 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
(d)complete any other course requirements because of their inability to meet (a), (b) and (c) above.
ISSUES
The issues for determination by the Tribunal are:
(a)whether:
(i)the applicant made her application for remission of her HECS-HELP debt before the end of the application period (subparagraph 36-20(1)(f)(i) of the Act); or
(ii)the requirement in subparagraph 36-20(1)(f)(i) of the Act should be waived on the grounds that it would not be, or was not, possible for the application to be made before the end of that period; and
(b)if so, whether special circumstances apply to the applicant in accordance with the provisions set out in paragraph 36-20(1)(d) of the Act.
EVIDENCE
The following facts of this matter are based on the evidence filed with the Tribunal.
ACU semester 1 2014 commenced on 24 February 2014 and finished on 22 June 2014; the census date for semester 1 2014 was 31 March 2014.[1] ACU semester 2 2014 commenced on 28 July 2014 and finished on 23 November 2014; the census date for semester 1 2014 was 31 August 2014.[2]
[1] Exhibit T-T3 page 17.
[2] Exhibit T-T3 pages 18-19.
The applicant’s academic transcript shows she was enrolled in a Bachelor of Arts/Bachelor of Social Work at ACU in 2014. She was:
·granted credit for work undertaken at TAFE for the following subjects: SOCS100 – Introduction to Sociology, SOCS234 – Sociological Theory and Practice, HUMA111 – Arts Advantage and UNCC100 – Our World: community/vulnerable; and
·enrolled in the following subjects in 2014:
oSemester 1: PSYC100 – Foundations of Psychology and SWTP308 – Introduction to Social Work.
oSemester 2: ARTS228 – Art and Design History and Theory 3, ARTS241 – 2D Studies 2 and PSYC101 – Applications of Psychology.[3]
[3] Exhibits T-T4 page 21 and T-T6 page 24.
Commonwealth Assistance Notices issued to the applicant show the following:
·Semester 1 2014: the applicant’s unit status for PSYC100 – Foundations of Psychology and SWTP308 – Introduction to Social Work was ‘web registered’ units – fee liable and the applicant had a HECS debt of $1,615.[4]
·Semester 2 2014: the applicant’s unit status for ARTS228 – Art and Design History and Theory 3, ARTS241 – 2D Studies 2 and PSYC101 – Applications of Psychology was ‘web registered’ units – fee liable and the applicant had a HECS debt of $2,405.[5]
[4] Exhibit T-T8 pages 26-27.
[5] Exhibit T-T8 pages 28-29.
Written statements filed by the applicant, emails between the applicant and lecturers, and medical records provided by the applicant outline the following chronology of events:
·The applicant moved from Queensland to Sydney on 14 February 2014 and commenced study at ACU.
·The applicant emailed a lecturer at ACU between 18 February 2014 and 6 March 2014 in relation to receiving credit for prior courses, her enrolment in courses at ACU, and feeling ‘stressed and overwhelmed’.[6]
[6] Exhibit ST-ST3 pages 14-19 and T-T9 pages 55-57.
·The applicant attended the ACU counselling service on 21 March 2014. Notes from this session stated that she was ‘quite distressed’ and had:
…found it difficult to settle in Sydney and at uni. She struggled to find accommodation and manage finances, and manage uni. Attended O week but somehow ended up with the wrong group hence did not receive crucial info about LEO and enrolment and workload. Hence, she had enrolled in 5 subjects but now dropped to 4. Currently continues to struggle with no Internet available to her at home as she is staying with her grandmother…
Discussion of transition to uni as a process. Discussion re loss of income and independence as a result of being a full time student. Student slowly adjusting to reliance on internet. Problem solving around access to the internet. Availability of Internet on campus and in library as well as availability of iPads and laptops from library…
Student to see course coordinator to ensure she has the correct information for her course and subjects. Encouraged student to book appt with our service.[7]
[7] Exhibit T-T9, page 44.
·The applicant exchanged emails with a lecturer at ACU between 14 March 2014 and 25 March 2014 regarding doing part time study rather than full time study; the applicant wrote that she wanted to ‘sort it out before the census date next Monday’.[8]
[8] Exhibit A2 pages 35-41.
·The applicant exchanged emails with a lecturer at ACU on 31 March 2014 regarding the process for seeking an extension for her assignment.[9]
[9] Exhibit A2 pages 43-47.
·The applicant exchanged emails with the Deputy Head of School, School of Psychology at ACU on 31 March 2014 and 1 April 2014 about organising a time to meet to discuss assessments, accessing weekly activities and an extension for her assignment.[10]
[10] Exhibit A2 pages 49-55.
·The applicant attended the ACU counselling service on 2 April 2014. Notes from this session included the following information:
Student attended appt as scheduled…
Student had presented at drop in with concerns regarding her academic load and transition to uni. Student has since met with course coordinator and decided to drop 2 units. Will be meeting with Head of School of psychology and Head of School of Social Work in relation to requesting extension for her uni work today…
Student…moved back from Brisbane to Sydney… She said returning to Sydney has…been difficult on a personal level. Accommodation issues currently living with grandparents but tends to stay with friends. Financial concerns as Centrelink benefit is not sufficient to allow her to rent…
She said that xxxx and friends in Sydney all continue to engage in substance abuse. She feels that she no longer fits in.
Reported family background of DV and substance abuse (pot) which strains the relationship with her parents. Reminders of past relationship leading to pregnancy and abortion also reported…
Problem solving around accommodation and looking at supported housing and financial support.
Problem solving around finding employment
Problem solving around commitments at uni…
Student to book appointment as required.[11]
·The applicant exchanged emails with a lecturer at ACU on 26 May 2014 and 27 May 2014 in relation to organising a time to speak to the lecturer about deferring university.[12]
·The applicant attended her medical practice on 4 June 2014. Progress notes recorded by her general practitioner stated she had ‘depressed mood’, was not coping at university, does not want to go to university, requested Centrelink certificate and letter to university, and booked to see a psychologist the next day.[13]
·The applicant attended her medical practice on 5 June 2014 and saw a psychologist. Progress notes by her general practitioner noted she was diagnosed with ‘major depression’, requested a backdated certificate to Centrelink and university from ‘late April’, and had ‘not started Cymbalta’.[14] The applicant’s general practitioner wrote a medical letter dated 5 June 2014 opining that the applicant was ‘suffering from major depression’ and had informed her that she has not been to university since late April.[15]
·The applicant attended her medical practice on 3 May 2015 for depression: she obtained a mental health care plan, was referred to a psychologist and given a prescription for Efexor-XR.[16]
·The applicant attended her medical practice on 1 June 2015 for depression. Progress notes recorded that she had anxiety, depression and was ‘teary’ and ‘emotional’, and stated ‘No hallucinations. No suicidal thoughts. No substance abuse’.[17]
·The applicant attended her medical practice on 2 March 2016 for anxiety/ depression and injury to her nose.[18]
·The applicant became aware that she had a HECS-HELP debt when she accessed the Australian Taxation Office Tax Agent Portal on 18 August 2018.[19] She contacted AskACU on 30 August 2018 in relation to her enrolment in 2014.[20] She then completed the ACU form, RE Re-credit of Unit/s and Refund of Fees in Special Circumstances, on 22 April 2020 and provided supporting documentation in support of special circumstances.[21]
[11] Exhibit T-T9 page 44.
[12] Exhibit A2 page 67.
[13] Exhibit T-T9 page 36.
[14] Exhibit T-T9 page 38.
[15] Exhibit T-T9 page 37.
[16] Exhibit T-T9 page 39.
[17] Exhibit T-T9 page 40.
[18] Exhibit T-T9 page 41.
[19] Exhibit T-T9 page 35.
[20] Exhibit T-T9 page 47.
[21] Exhibit T-T9 pages 30-58.
At the hearing, the applicant provided oral evidence that the period in 2014 when she returned to Sydney and commenced university was extremely difficult. She referred to her emails to lecturers, notes from the counselling service at ACU and progress notes from general practitioners at her medical centre between February 2014 and June 2014 to demonstrate that she was anxious, stressed and overwhelmed by university and her personal circumstances. She also said that she was suicidal, drinking heavily and taking drugs during this period. However, she acknowledged that she did not attend any sessions with a psychologist under her mental health care plan and did not take the anti-depressant medications prescribed by general practitioners on 5 June 2014 and 3 May 2015.
In her oral evidence to the Tribunal, the applicant was adamant that she withdrew from ACU in semester 1 2014 with the assistance of ‘admin people’ at ACU. However, she could not recall when this occurred or whether she met with her lecturer after their email exchange on 26 May 2014 and 27 May 2014 about organising a time to discuss her deferring university. The applicant also said that she did not know how long she attended university classes for in 2014, but said she never attended university in semester 2 2014.
The applicant told the Tribunal that she never received any documentation from ACU that she had deferred, unenrolled from units or had withdrawn from the university. She said she first became aware of her HECS-HELP debt in August 2018 when she attempted to complete her tax return. She submitted that it was not her fault that she did not know about her enrolment or HECS-HELP debt because she was unable to access her ACU LEO account and ACU email, and ACU records appeared to show her previous Queensland address rather than her Sydney address. She said that she did not submit her application for remission of the debt until April 2020 because of difficulties in her personal life and caring for her partner, his two children and mother, and her mother.
The applicant also filed with the Tribunal documentary evidence about her circumstances in the period from 2014 to the present and provided detailed oral evidence about these circumstances at the hearing. In summary, this evidence comprised details about:
·The applicant’s relationship with her partner between 2014 and the present. In particular, the applicant:
oassisted her partner in the period from May 2014 to July 2014 by taking him to work, a day recovery program, and parole drug and alcohol counselling;
ocommenced living with her partner, his two young children and his parents from September 2014;
oprovided care (including financial support) for her partner’s children from September 2014;
oassisted her partner in relation to his visa cancellation under section 501(3A) of the Migration Act 1958 (Cth) in late 2014 and 2015, including assisting him to write a letter requesting the discretion to revoke the mandatory cancellation of his visa be exercised and organising letters of support from family, friends and colleagues;
oprovided care for her partner from 2015 in relation to his diagnosis and treatment for drug use disorders and chronic psychotic disorders; and
oexperienced domestic violence.[22]
·The mother of the applicant’s partner being diagnosed with undifferentiated schizophrenia in 2017.[23]
·The applicant’s mother being diagnosed with lung cancer in 2020, and details about the care the applicant provides her mother.[24]
·The applicant’s employment during 2015, which included two casual social work employment positions that jointly comprised between four and 35 hours work a week.
[22] Exhibits A1 and A3.
[23] Exhibit ST2.
[24] Exhibit ST5.
CONSIDERATION
Issue 1 – Was the application made before the end of the application period as required by subparagraph 36-20(1)(f)(i) of the Act?
I am satisfied there is no evidence that the applicant withdrew from her enrolment in a Bachelor of Arts/Bachelor of Social Work at ACU during 2014 and no evidence that ACU provided a notice to the applicant that she had withdrawn. This means that the application period I must consider is set out in subsection 36-22(2) of the Act, which is the period of 12 months after the end of the period during which the applicant was to undertake the units. The relevant application periods are therefore:
·Semester 1 2014 units: 22 June 2014 to 22 June 2015; and
·Semester 2 2014 units: 23 November 2014 to 23 November 2015.
As the applicant submitted her application for remission of her HECS-HELP debt to ACU on or about 22 April 2020, a date approximately four years and five months after the end of the second application period, I find that she did not make her application before the end of the application period for the units she was enrolled in for semester 1 2014 or semester 2 2014.
I am satisfied that the applicant did not make her application before the end of the application period as required by subparagraph 36-20(1)(f)(i) of the Act.
Issue 2 – Should the requirement in subparagraph 36-20(1)(f)(i) of the Act be waived on the grounds that it would not be, or was not, possible for the application to be made before the end of that period as required by subparagraph 36-20(1)(f)(ii) of the Act?
I now consider whether the requirement in subparagraph 36-20(1)(f)(i) of the Act should be waived on the grounds that it would not be, or was not, possible for the application to be made before the end of the application period.
The respondent provided written submissions citing case law in relation to the ‘high’ threshold requirement contained in subparagraph 36-20(1)(f)(ii) of the Act that it was ‘not possible’ for the application to be made before the end of the relevant period; in the applicant’s situation, before 22 June 2015 for her semester 1 2014 units and before 23 November 2015 for her semester 2 2014 units.[25]
[25] Respondent’s Statement of Issues, Facts and Contentions filed on 11 June 2021 paragraphs 5.8-5.10.
I concur that the use of ‘not possible’ in subparagraph 36-20(1)(f)(i) of the Act requires me to consider whether it was unachievable or unattainable for the application to be made before the end of the relevant application period.
I have considered the applicant’s extensive documentary and oral evidence about her circumstances during 2014 and 2015. I accept that she experienced a very difficult time when she returned to Sydney in February 2014 in relation to her personal and financial circumstances, and had problems with finding stable accommodation. I also accept that she found university challenging, despite her evidence about receiving assistance from her lecturers and the ACU counselling service between February 2014 and May 2014.
However, in the period from 22 June 2014 to 23 November 2015 (encompassing both relevant application periods), the applicant has given evidence that she provided extensive support to her partner in relation to him attending work, participating in a day recovery program and parole drug and alcohol counselling, and responding to the cancellation of his visa. The applicant also provided care and support for her partner during this period in relation to his diagnosis and treatment for drug use disorders and chronic psychotic disorders, and shared care (including providing financial support) for her partner’s two young children. During this period, she was also employed in two casual positions with her hours of work varying between four and 35 hours a week.
Weighing this evidence in relation to the applicant’s circumstances, I am not satisfied that it was not possible for the applicant to make her application for remission of her HECS-HELP debt before the end of the application period and so does not meet the requirement in subparagraph 36-20(1)(f)(ii) of the Act.
CONCLUSION
For the reasons set out above, I find that the applicant does not meet the requirement in paragraph 36-20(1)(f) of the Act. This means that it is not necessary for me to consider whether special circumstances apply to the applicant.
DECISION
The decision under review is affirmed.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
.............................[SGD]...........................................
Associate
Dated: 08 July 2021
Date(s) of hearing: 28 June 2021 Applicant: In person Counsel for the Respondent: Ms M Donald Solicitors for the Respondent: SPARKE HELMORE
3
0
0