Vandenberk and Secretary, Department of Education
[2024] AATA 1668
•14 June 2024
Vandenberk and Secretary, Department of Education [2024] AATA 1668 (14 June 2024)
Division:GENERAL DIVISION
File Number(s): 2023/4079
Re:Mr Khyle Vandenberk
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO Member
Date:14 June 2024
Place:Melbourne
The Tribunal affirms the decision under review.
................................[sgd]........................................
Ms A E Burke AO Member
Catchwords
EDUCATION – HECS-HELP – debt remission – whether special circumstances apply – where all 3 criteria must be met – whether circumstances were abnormal, uncommon or unusual and beyond applicant’s control – whether full impact of circumstances was on or after census date – whether circumstances made it impracticable for applicant to complete the requirements for the unit – Tribunal not satisfied that special circumstances apply – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
Mental Health Act 2014 (Vic)Cases
Bow and Secretary, Department of Education [2020] AATA 114
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Lushchavey and Secretary, Department of Education, Skills and Employment [2022] AATA 374
Peters and Secretary, Department of Education, Skills and Employment [2021] AATA 3800
Sadek and Secretary, Department of Education [2017] AATA 1399Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
Secondary Materials
Higher Education Support (Administration) Guidelines 2022 (Cth)
REASONS FOR DECISION
Ms A E Burke AO Member
Mr Khyle Vandenberk is seeking a review of a decision by SAE Creative Media Institute (SAE) to uphold an earlier decision not to re-credit his FEE-HELP balance in relation to FEE‑HELP assistance given to him pursuant to section 101-1 of the Higher Education Support Act 2003 (Cth) (‘the Act’), for study in a Diploma of Music Production.
On 7 May 2021 SAE confirmed Mr Vandenberk enrolled in a Diploma of Music Production commencing on 31 May 2021 on a full-time basis, with a proposed completion date of 6 May 2022.
In Trimester 2, 2021 Mr Vandenberk enrolled in 2 core units, AUM172 Music Materials attending his first lecture on 31 May 2021 and AUM173 Introduction to Songwriting and Music Production attending his first lecture on 2 June 2021. Both units were a trimester long, with no required pre-requisites and delivery mode was described as Face to Face, Blended. The census date for both units was the 18 June 2021 (‘the census date’).
On 29 November 2021 SEA advised Mr Vandenberk he had been withdrawn from his enrolment in the Diploma of Music Production following his submission of a cessation of studies form.
On 17 February 2023, Mr Vandenberk submitted a request to SAE for remission of his FEE-HELP debt in relation to units AUM172 and AUM173. On 23 February 2023, SAE declined his application and on 5 May 2023 SAE affirmed this decision on internal review, stating:
In your case we have considered the evidence for the selection criteria, namely the requirement to submit an application within 12 months of the relevant census date. We have found there is insufficient evidence to support an extension of time to lodge an appeal of special circumstances. On these grounds we have made the decision that we will not refund your FEE-HELP in line with the HESA guidelines. Lack of knowledge or understanding of the FEE-HELP requirements under the scheme is not reason in itself to grant an extension of time to submit an application.
Finally, the additional medical information provided in your appeal confirms that you have been suffering from Bi-polar disorder and manic depression since 2017, indicating that your condition is therefore pre-existing and therefore not unusual as it relates to you. There is also insufficient evidence to support the delay in submitting the original application within 12 months, hence why the decision has been made to affirm the original decision to not re-credit your FEE-HELP for your studies during trimester 2, 2021.
On 1 June 2023, Mr Vandenberk applied to the Tribunal for review of the internal review decision, stating:
I believe the decision made upon my circumstances is unfair and incorrect, the impact of covid 19 and the toll it took on my mental health conditions had a big impact on me throughout my studying period, I only attended 6 weeks of university and i feel as if I’m being charged for a service that didn’t even allow me to attend in person classes and experience the correct teaching that was advertised.
The unfortunate event of covid 19 took a big toll on my mental health and made it virtually impossible for me to return to the normality that was pre covid, still to this day i am suffering from the consequences of all this.
My classes where deferred as the learning environment was switched to online due to lockdown after lockdown, throughout the time i was enrolled in the course we kept going in and out of lockdown witch made the learning experience horrible and unmanageable, once another lockdown ended I attempted but couldn't mentally and physically make the return to in person classes due to the impact of covid 19 and how it had flared up my bi-polar and depression, it was then at this stage i was contacted by student service's, I was reaching out screaming for help and was very lost and confused on what I could do, I had then made a decision to leave the source and was assured I wasn't going to be charged for my studies due to the circumstances of covid 19 and the impact it played.
I am very upset till this day about not completing the course as I’m very passionate about music production, but I had to put my mental health first and do what’s best for myself, I was not aware at all in anyway that I even had a student debt till a few months ago when I had to go onto my ATO online service's account and then i seen it sitting there it, it was then at that point that i questioned it and contacted sae regarding the situation, this is why i never had a chance to lodge a fee remission form within the desired timeframe i was never aware I even had a student debt.
Medical documentation has been attached from my local GP, thank you.
Mr Vandenberk appeared self-represented by video at the hearing on 27 May 2024 and Mr Adam Cunynghame, solicitor at Sparke Helmore, appeared for the Secretary, Department of Education (the Respondent).
LEGISLATION
The Act governs the provision of financial support to students and the repayment of a person's contributions, or remission, of a FEE-HELP debt in respect of a unit of study in certain circumstances.
A FEE-HELP debt is incurred when the Commonwealth makes a loan to a person and uses the loan amount to make a payment to a higher education provider to discharge the person's liability to pay the student contribution for a unit of study. FEE-HELP debt is taken to have been incurred immediately after the census date for the unit.
Section 101-1 of Part 3-3 of the Act defines FEE- HELP assistance as follows:
What this Part is about
A student may be entitled to FEE‑HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met.
The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a higher education provider or, if the student accesses units through Open Universities Australia, that body, to discharge the student’s liability to pay his or her tuition fees.
Section 104-25(1) outlines the main case of re-crediting a person’s HELP balance in relation to FEE HELP assistance:
(1) A higher education provider must, on the *Secretary’s behalf, re credit a person’s *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if:
(a) the person has been enrolled in the unit with the provider; and
(aa) access to the unit was not provided by *Open Universities Australia; 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 104-30); and
(d) the person applies in writing to the provider for re crediting of the HELP balance; and
(e) either:
(i) the application is made before the end of the application period under section 104-35; 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 104-30 defines special circumstances for the purposes of re-crediting FEE-HELP assistances under the Act:
(1) For the purposes of paragraphs 104-1A(2)(b) and 104-25(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 in the period during which the person undertook, or was to undertake the unit.
(2) If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Section 104-35 outlines that applications for re-crediting are to be made within a defined period:
(1) If:
(a) the person applying under 104-25(1)(d) for the re-crediting of the person's * HELP balance 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.
(1A) If:
(a) the person applying under paragraph 104-25(2)(d) for the re-crediting of the person's * HELP balance in relation to a unit of study has withdrawn from the unit; and
(b) * Open Universities Australia 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 subsections (1) and (1A) do not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.
Part 5-7 of the Act outlines the decisions which can be reviewed, the process, and the makers of decisions. Where a decision has been affirmed, varied or set aside following review an application may be made to the Tribunal for review of the decision.
Part 3 of the Higher Education Support (Administration) Guidelines2022 (Cth) (‘the Guidelines’) defines the operation of special circumstances under the Act:
12 Circumstances beyond a person’s control
(1) For the purposes of paragraphs 36-13(3)(a) and 36-21(1)(a) of the Act, a higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which the provider reasonably considers is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
(2) The situation referred to in subsection (1) must be unusual, uncommon or abnormal.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2), 104-30(2) and 128E-5(2) of the Act.
13 Circumstances that did not make their full impact until on or after the census date
(1) For the purposes of paragraphs 36-13(3)(b) and 36-21(1)(b) of the Act, 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;
(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.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2), 104-30(2) and 128E-5(2) of the Act.
14 Circumstances that make it impracticable for the person to complete the requirements
(1) For the purposes of paragraphs 36-13(3)(c) and 36-21(1)(c) of the Act, 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 if the person undertook, or was to undertake, the unit in the following kinds of circumstances:
(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;
(b) family or 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;
(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.
(2) The requirements for a unit of study referred to in subsection (1) are that the person:
(a) undertakes the necessary private study required, or attends sufficient lectures or tutorials or meets other compulsory attendance requirements in order to meet their compulsory course requirements;
(b) completes the required assessable work
(c) sits the required examinations; or
(d) completes any other course requirements.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2), 104-30(2) and 128E-5(2) of the Act.
THE ISSUES IN CONTENTION
The issue before the Tribunal is whether Mr Vandenberk:
(a)had successfully completed the units;
(b)submitted his application for re-crediting within 12 months of completing the units and if so;
(c)pursuant to section 104-25(1)(c) of the Act, special circumstances applied to him such that his FEE-HELP balance should be re-credited with an amount equal to the amounts of FEE-HELP assistance he received.
CONTENTIONS
Mr Vandenberk
Mr Vandenberk in his oral and written evidence to the Tribunal submitted that:
·he always had an interest in music production, and was very passionate about it;
·his father was an audio engineer and so he decided to undertake the course and pursue music as his career;
·he didn’t really do much research about the institute, the cost of the course, or any debt he may incur;
·he chose SAE as that is where his father studied;
·his father passed away recently;
·he had not undertaken any formal training prior to doing the course, having left school at year 9;
·he does not recall reading or understanding anything in respect of the census dates, but accepted he had signed all the documentation which indicated he understood what was required of him if he sought to withdrew from the course;
·no member of his family had undertaken tertiary studies and so could not advise him of what he was actually signing up for in respect of incurring a future fee-help debt;
·that his mental health had significantly deteriorated during Covid lockdowns and he simply could not undertake the course;
·he was isolated in his room, severely depressed, and unable to do anything;
·he was unable to attend the doctors for help because of the lockdown restrictions;
·his family were supporting him during the period, and he was unable to seek medical help as he was too depressed to leave his room;
·he had been able to complete Unit AUM173 as the classes were in the first trimester and he had been able to attend in person but had failed Unit AUM172 as Victoria went into lockdown and he could no longer do the classes face to face;
·he simply was to mentally unwell to complete the course;
·he was still too unwell to submit his application for recrediting of his Fee-Help debt;
·he did not realise he had a debt until he logged onto his myGov account and saw the debt recorded on his ATO page;
·he is trying to pay off his Fee-Help debt as it is continuing to grow because of indexation;
·he is currently living at home on the family farm acting as his mother’s carer as she has recently been diagnosed with cancer;
·he accepted he had passed and completed Unit AUM173 so was no longer seeking to press this claim and accepted he had to repay this debt;
·he would be keen to return to complete the course when his circumstances allowed and would happily complete unit AUM172;
·he would be happy to negotiate with SAE so he could finish the unit but was not willing to do the unit if it required paying again;
·he simply did not believe he should have to pay for something he could not attend and from which he received little to no benefit; and
·he was making payments towards his FEE-HELP debt as he did not want it to blow out.
Secretary, Department of Education
The Respondent contended that the Tribunal could not be satisfied that special circumstances applied to Mr Vandenberk as he had not met all the conditions set out in section 104-30(1) of the Act.
Did not complete the requirements for that unit during the period during which they undertook, or were to undertake the unit
The Respondent noted the Department of Education's "Higher Education Administration Information for Providers" policy provides that "A person cannot apply for a re-credit, remission and/or repayment if they have successfully completed the unit. A person who receives a fail grade is considered not to have successfully completed the requirements of the unit."
On the basis of the policy and the Act, the Respondent contended Mr Vandenberk:
·Was enrolled to complete AUM172 and AUM173 in Trimester 2 2021 at SAE and his academic transcript recorded he failed Unit AUM172 and passed Unit AUM173.
·Did not complete the requirements for AUM172 during the period in which he undertook this unit of study.
·However, did complete the requirements for Unit AUM173 and therefore it was not open to the Tribunal to re-credit his HELP balance with respect to AUM173 as he did not meet s 104-25(1)(b) of the Act.
Applications for re-crediting are to be made within a defined period
The Respondent contended the Tribunal was in the first instance required to determine, in accordance with s 104-25(1)(e)(ii) and s 104-35 of the Act, whether it “would not be, or was not, possible for Mr Vandenberk to have made his application before the end of that period” for the relevant units of study.
The Respondent contended Mr Vandenberk was required to submit his application for recrediting his FEE-HELP 12 months after he undertook the units. The Respondent contended Mr Vandenberk submitted his application on 17 February 2023 which was more than 12 months after he undertook the units.
Therefore, the Respondent contended Mr Vandenberk falls foul of the 12 month “application period” under s 104-35 of the Act.
The Respondent contended if the Tribunal determines either that:
(a) it was possible for Mr Vandenberk to make an application before the end of the “application period” for the units, then he cannot satisfy s 104-35 of the Act; or
(b) it was not possible for Mr Vandenberk to make an Application before the end of the “application period” for those units, then he is able to satisfy s 104-25(1)(e)(ii) and section 104-35 of the Act, and the Tribunal would only then need to consider whether “special circumstances” applied to Mr Vandenberk in respect of those units.
The Respondent submitted the Tribunal has previously considered that not possible with respect to s 104-25(1)(e)(ii) of the Act means not reasonably possible in all the circumstances.
The Respondent contended that it was possible for Mr Vandenberk to have made an application before the end of the Application period as his evidence did not establish that it was not possible for him to lodge the Application for remission in the "application period”. The Respondent submitted no persuasive medical evidence had been provided for the Tribunal to reasonably find a conclusion that it was not reasonably possible for him to do so.
To the contrary, the Respondent submitted there was evidence that Mr Vandenberk was able to visit doctors in relation to physical ailments over this period and made no complaints or claims of needing assistance with his mental health. Nor did the doctors record that Mr Vandenberk was presenting with mental health concerns or symptoms indicating a flare up in his bipolar over this period. The Respondent submitted the evidence strongly indicates that Mr Vandenberk was not so incapacitated by his mental health condition as he claims, particularly not to the point of not being able to complete the Application, a straightforward written form, over this period.
Did special circumstances apply to the Applicant
The Respondent submitted if the Tribunal found that it was not possible for Mr Vandenberk to have made an application before the end of the “application period” then it must consider whether special circumstances applied to Mr Vandenberk in respect of AUM172.
Circumstances beyond a person’s control
The Respondent submitted the use of the conjunctive “and” in s 104-30(1) of the Act makes it clear that all three conditions must be satisfied for Mr Vandenberk to establish “special circumstances”.
The Respondent accepted that Mr Vandenberk’s mental health conditions were beyond his control and were not due to his action or inaction, or to which any responsibility could be attributed.
The Respondent took the Tribunal to the matter of Sadek and Secretary, Department of Education [2017] AATA 1399 at [29] (subsequently applied in Khan and Secretary, Department of Education [2019] AATA 3609 at [52]), the Tribunal stated:
While I accept that the applicant’s medical conditions were not “within her control”, the applicant has not sufficiently demonstrated how her circumstances as a whole were beyond her control. Given the ongoing nature of her medical conditions over a number of years, the applicant ought to have understood her capacity to undertake the relevant subjects given the reactive and intermittent nature of her mental health and physiological conditions, The fact that the applicant’s medical conditions existed before the relevant census date meant that it was possible for her to withdraw from the Units before the relevant census date. This was within her control.”
The Respondent also took the Tribunal to the matter of Peters and Secretary, Department of Education, Skills and Employment [2021] AATA 3800 at [59] – [65], the Tribunal stated:
As at the census date of each of the units of study for which he seeks remission of the HECS-HELP debt, the applicant knew that he suffered from a medical condition the symptoms of which may be such as to prevent him from undertaking and completing the unit…despite knowing these things, the applicant elected to enrol in each relevant unit of study … and took no steps to withdraw from it prior to its census date … I am not satisfied that the situation in which the applicant found himself was beyond his control.
The Respondent contended, to the extent that Mr Vandenberk contends his mental health conditions were beyond his control, that it cannot be established on the evidence that Mr Vandenberk’s mental health conditions were pre-existing conditions that were not “unusual, uncommon or abnormal”, such that it was possible for Mr Vandenberk to withdraw before the census date on account of same.
The Respondent submitted the summonsed material from Orygen Sunshine which show that in 2017 Mr Vandenberk was subject to a Temporary Treatment Order and applied to the Mental Health Tribunal under the Mental Health Act 2014 (Vic) for revocation of that order. Additionally, on 12 November 2017 Mr Vandenberk was subject to an assessment by NorthWestern Mental Health which provided that he was referred to them in the context of him presenting to The Northern Hospital Emergency Department as “…erratic, disorganised, and psychotic on background of increased psychosocial stressors”.
The Respondent submitted Mr Vandenberk has a documented history of mental health conditions including a significant event around his bipolar disorder in the recent past, where he was the subject of a treatment order.
The Respondent contended if Mr Vandenberk was suffering from symptoms of bipolar as at 5 June 2021 (i.e. prior to the census date), as he self-reported to Dr Bhatti on 2 March 2023, given the fact his bipolar condition was pre-existing with a documented history, the Tribunal should not be satisfied it was “unusual, uncommon or abnormal” and find that Mr Vandenberk could have withdrawn pre census.
The Respondent accordingly contended that Mr Vandenberk’s circumstances were not beyond his control and do not meet s 104-30(1)(a).
Circumstances that did not make their full impact until on or after the census date
The Respondent submitted subsection 13(1) of the Guidelines provides that 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 if the person’s circumstances occur, on or after the census date. The Respondent submitted the census date for AUM172 was 18 June 2021.
The Respondent contended that there was no evidence that Mr Vandenberk’s mental health condition did not make its full impact on him until on or after the census date. Whilst Mr Vandenberk relies on a report from Dr Faisal Bhatti from Q1 Medical dated 16 November 2023 that reported that from November 2021 to January 2023 he had a “flare up of his mental health conditions”, that report is based entirely on his self-reporting without any independent or clinical assessment of his mental health condition. The probative value is also undermined by the material produced under summons from Q1 Medical which show an absence of any engagement with Q1 Medical by Mr Vandenberk with respect to his mental health between November 2021 to January 2023, and there is no record that the doctor who consulted with Mr Vandenberk during this period had any concerns about his mental health. The Respondent contended, given these circumstances, that little to no weight should be placed on the report.
The Respondent also submitted Mr Vandenberk’s alleged flare up is reported to have occurred in a period entirely outside the study period for the course (31 May 2021 to 27 August 2021), such that it could not have affected his ability to complete the course.
The Respondent further submitted, in any event, the summonsed material from the Orygen Sunshine shows that in 2017 Mr Vandenberk was subject to a Temporary Treatment Order and applied to the Mental Health Tribunal under the Mental Health Act 2014 (Vic) for revocation of that order. Additionally, on 12 November 2017, Mr Vandenberk was subject to an assessment by NorthWestern Mental Health which provided that he was referred to them in the context of presenting to the Northern Hospital Emergency Department as “… erratic, disorganised, and psychotic on background of increased psycho social stressors”.
The Respondent contended the Tribunal should prefer this evidence as demonstrative of the fact that the full impact of the Applicant’s mental health condition occurred well before the census date and as earlier as 2017.
Circumstances that make it impracticable for the person to complete the requirements
The Respondent submitted subsection 14(1)(a) of the Guidelines provides that a higher education provider will be satisfied that a person’s circumstances made it impracticable for the person to complete the requirements for a unit of study if the person undertook, or was to undertake, the unit in 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. Subsection 14(2) provides that the requirements for a unit of study referred to in subsection 14(1) includes the requirement for the person to complete the required assessable work.
The Respondent took the Tribunal to the matter of Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at [45] where the Tribunal stated that “impracticable” means “not able to be done”. In Bow and Secretary, Department of Education [2020] AATA 114 at [53], the Tribunal, in considering Zabaneh, considered the test for circumstances making it impracticable to complete the relevant courses of study is a high bar. In that case, the Tribunal found that the Applicant had demonstrated that they were previously able to pass their subjects with commendable marks.
The Respondent submitted the Tribunal has subsequently distinguished circumstances making it “difficult” for an Applicant to complete the requirements for a unit of study, and circumstances making it “impractical.” In Georgiou and Secretary, Department of Education and Training [2019] AATA 170 at [20], the Tribunal said “However, while the available evidence may lead to a conclusion that it would be difficult for the Applicant to complete the requirements of the units, it is insufficient to establish that circumstances were such that it was impractical for this to be done”.
The Respondent contended that the reasons advanced by Mr Vandenberk do not demonstrate that his circumstances made it “impracticable,” as distinct from “difficult”, for him to complete the requirements for Unit AUM172. The Respondent submitted this was particularly evident from the fact that he was able to complete Unit AUM173 and he has offered no explanation as to why his condition allowed him to complete this study but not Unit AUM172.
The Respondent further contended that Mr Vandenberk has provided no evidence that his condition changed to such an extent that he was unable to continue studying or otherwise unable to complete the Unit. The Respondent drew the attention of the Tribunal to the matter of Lushchavey and Secretary, Department of Education, Skills and Employment [2022] AATA 374, at [39], where the Tribunal found that it was not persuaded by the unsubstantiated claims of the Applicant with respect to meeting the medical circumstances criteria in the Guidelines.
The Respondent also noted that in medical report from Dr Faisal Bhatti from Q1 Medical dated 16 November 2023 that Mr Vandenberk relies on the alleged “flare up of his mental health conditions” reported to have occurred in a period entirely outside the study period for the course (31 May 2021 to 27 August 2021), such that it could not have affected his ability to complete the course.
The Respondent contended in circumstances where Mr Vandenberk does not meet each of the criteria at s 104-30(1) of the Act, the Tribunal cannot be satisfied that special circumstances to re-credit a FEE-Help debt apply to him pursuant to section 104-25(1)(c) of the Act.
CONSIDERATION
The Tribunal found, based on the evidence, that Mr Vandenberk withdrew from his course sometime after 29 November 2021 which was after the census date of 18 June 2021. The Tribunal therefore finds that Mr Vandenberk has a FEE-HELP debt.
Mr Vandenberk advised the Tribunal he was only seeking recrediting for one of the units he had undertaken AUM172 Music Materials. Mr Vandenberk concurred with the Respondent that he had passed one of his units, AUM173 Introduction to Songwriting and therefore in accordance did not meet section 104-25(1)(b) of the Act. Mr Vandenberk continued to press his claim for re-crediting of one unit which at the time of his enrolment was $3,289.
The Tribunal concurred with the parties that as Mr Vandenberk had successfully completed AUM173 Introduction to Songwriting, in accordance with section 104-25(1)(b) of the Act he could not seek re-crediting of his FEE-HELP for this unit. The Tribunal then turned to consider if Mr Vandenberk met the requirements for re-crediting of his FEE-HELP for unit AUM172 Music Materials which he had failed.
In the first instance the Tribunal had to determine if Mr Vandenberk had made his application for re-crediting his FEE-HELP in the prescribed time period as defined in section 104-35(2) of the Act.
The Tribunal found as Mr Vandenberk had not applied to withdrew from unit AUM172 he was required to submit his application for recrediting 12 months after he had undertaken the unit. As Unit AUM172 concluded on 3 August 2021 he was required to submit his application no later than 3 August 2022, and as Mr Vandenberk submitted his application on 17 February 2023, he was clearly out of time to make his application.
The Tribunal notes Mr Vandenberk withdrew from the Diploma of Music sometime around 29 November 2021 however the evidence did not demonstrate this was a formal withdrawal from unit AUM172. Regardless, even if the Tribunal found Mr Vandenberk had withdrawn from the unit, his application for re-crediting his FEE-HELP was still out of time.
In accordance with the Act, the requirement that Mr Vandenberk make his application for re-crediting FEE-HELP within the 12-month period can be waived on the ground that it was not possible for him to submit his application in the prescribed time period.
Mr Vandenberk contended that he was unable to submit his application for re-crediting his FEE-HELP in time because of his deteriorating mental health condition and ignorance of his debt.
The Tribunal finds that it was not impossible for Mr Vandenberk to submit his application for re-crediting his FEE-HELP debt within the 12-month period.
The Tribunal found in this instance that Mr Vandenberk’s claim of ignorance of his debt was not supported by the evidence as:
(a)Mr Vandenberk was aware of his requirement to repay the debt as he had submitted his Request for a FEE-HELP loan (non-university higher education providers) on 14 May 2021 which clearly outlines his obligation to repay the ATO the amount loaned to him to complete his course:
SECTION F. REPAYING YOUR LOAN
By submitting this eCAF, I am declaring that I agree to the following statements:
I have an obligation to repay to the ATO the amount that the Government has loaned me, plus the loan fee if applicable, regardless of whether I complete my studies or not, and regardless of where I live, including overseas.
My debt to the Government will remain if I withdraw or cancel my enrolment from my unit of study or course after the census date but my HELP balance may be re-credited by SAE CREATIVE MEDIA INSTITUTE in special circumstances. My HELP balance will then be recredited. I can visit for more information.
My HELP debt will be indexed annually in line with HESA, which I also agree to repay to the ATO.
I must start repaying my HELP debt through the Australian tax system once my income is above a certain level (the minimum compulsory repayment threshold). The threshold is indexed annually. Repayments made through the Australian taxation system are called 'compulsory repayments'. In accordance with Chapter 4 of HESA, these repayments will continue while my income is above the compulsory repayment threshold until I have repaid my whole HELP debt, even if I have not completed my studies and regardless of whether I have moved overseas.
(b)And further on the 16 June 2021 SEA had sent all students an email indicating that failing to withdraw prior to census date would result in them incurring a financial penalty:
Dear Khyle,
Census date is Friday June 18 2021
Trimester 2 2021 census date is Friday 18th June
This is the LAST DAY TO WITHDRAW WITHOUT FINANCIAL PENALTY.
This date is very important to your enrolment each trimester so please make sure you read this email and act upon anything that may apply to you.
Census date is the last day that you can make any changes to your enrolment without being financially penalised and the last day you can apply for FEE HELP by submitting your eCAF
(Electronic Commonwealth Assistance Form).
If you wish to make any of the following changes to your enrolment, please do so before 5pm on the census date.
* Drop a unit from your study path for this trimester
* Defer from your course
* Withdraw from your course
* Apply for RPL (Recognition of Prior Learning)
* Apply to start using FEE-HELP
Please contact Student Services if you need to make any of these changes via email [email protected] or phone 03 8632 3400
After 5pm census date Friday 18th June you will be charged for all modules you are enrolled in.
Sincerely,
Student Services
The Tribunal found Mr Vandenberk to be a credible witness accepting his assertion that as a young person who had left school early, he had not clearly thought through engaging with higher education, was not really aware of what he was signing up for when he applied to undertake the course at SAE or the associated FEE-HELP to assist with paying for the course. The Tribunal can accept that Mr Vandenberk would have paid no attention to the cost associated with undertaking the 12-month course at SAE or his obligation to repay the FEE-HELP, but sadly Mr Vandenberk’s lax approach to the administration of his life, common among younger people, did not make it impossible for him to apply for re-crediting his FEE-HELP within the 12 month period. Ignorance of the law is not an excuse, and in his case, Mr Vandenberk was not ignorant of his obligations as he had signed up to them and been reminded of them on numerous occasions.
The Tribunal found the evidence did not support Mr Vandenberk’s contention that it was impossible for him to submit his application for recrediting his FEE-HELP within 12 months because of the impact of COVID-19 lockdowns on his deteriorating mental health.
On this analysis the Tribunal is not required to consider if special circumstances apply to Mr Vandenberk as his application for re-crediting his FEE-HELP is out of time. However, in fairness to Mr Vandenberk the Tribunal will next consider if he meets the requirements of section 104-25(1).
Pursuant to section 104-30 of the Act and Part 3 of the Guidelines, special circumstances only apply to a person where the circumstances are: beyond a person's control; and make their full impact on or after the census date; and make it impracticable for the person to complete the requirements for the unit of study during the relevant study period.
The conditions established in section 104-30 of the Act are cumulative, and all of those conditions must be met in order for the Tribunal to be satisfied that special circumstances apply.
The evidence before the Tribunal did not support Mr Vandenberk contention that special circumstances applied for recrediting his FEE-HELP because of the impact of COVID-19 lockdowns on his deteriorating mental health. The evidence before the Tribunal clearly indicated that Mr Vandenberk’s mental health conditions and COVID-19 lockdowns were beyond his control, however they had made their impact before the census date and did not make it impossible for him to complete the requirements of his unit.
The Tribunal relied upon the following:
·Clinical records from Mr Vandenberk’s General Practitioner indicated that from 8 May 2017 he had been complaining of low mood; sometimes he feels elevated and some days has low esteem, and that he had visited his doctor in relation to his Anxiety/Depression and Bipolar 2 disorder.
·An undated enrolment form, under the heading “disabilities”, Mr Vandenberk’s indicated he did not have a disability, impairment or long-term medical condition that may affect his studies and he did not require advice on disability support services.
·Mr Vandenberk attended 75% of his classes for Unit AUM172 between 31 May 2021 and 23 August 2021 and 78.26% of his classes for Unit AUM173 between 2 June 2021 and 25 August 2021.
·Melbourne lockdown dates as a result of COVID-19:
(i)31 March 2020 to 12 May 2020;
(ii)9 July 202 to 27 October 2020;
(iii)13 February 2021 to 17 February 2021;
(iv)28 May 2021 to 10 June 2021;
(v)16 July 2021 to 27 July 2021;
(vi)5 August 2021 to 21 October 2021.
·On 7 April 2021 Mr Vandenberk’s lecturer emailed him the following message:
The first class is scheduled for this Monday, 31st of May, starting at midday. Please check in your timetable to clarify which class you are enrolled in.
Due to the lockdown, these classes will run on Zoom for the first week. Please check in using the Zoom link for your class:
·Clinical records from Mr Vandenberk’s General Practitioner indicated that on 7 October 2021 he visited, and was complaining of “mid back pain, does not settle, despite pyhsio and chiro inputs, localised tenderness, nil deformity”.
·On 16 November 2023 Dr Faisal Bhatti from Q1 Medical provided the following report for Mr Vandenberk:
[Mr Vandenberk] has been a registered patient in our practice since 08/05/2017. He is known to have mental health conditions i.e Bipolar Affective Disorder, Mania episodes and Chronic Back Pain.
He has reported that from November 2021 to January 2023 he had flare up of his mental health conditions. This incapacitated him from attending his university lessons and studies. He seeked help from the Student Councillor in the university as well as from family and friends he was also referred to allied health to help him in managing his back pain.
Because of above special circumstances Khyle was not able to apply for the application for the university fee remission within the designated timeframe. will really appreciate if his request is heeded by your office.
The Tribunal found based on the evidence Mr Vandenberk’s mental health condition was long standing and whilst the Tribunal does not in any way seek to diminish the seriousness of Mr Vandenberk’s condition there was nothing to demonstrate how its impact, as a whole, were beyond his control. As noted, by numerous Tribunal members previously, given the ongoing nature of Mr Vandenberk’s mental health condition over a number of years, he ought to have understood his capacity to undertake the units given the reactive and intermittent nature of his mental health conditions.
The Tribunal found based on the evidence that the full impact of Mr Vandenberk’s mental health condition occurred well before the census date, as did the COVID-19 lockdowns which Mr Vandenberk contended exacerbated his condition. The very first week Mr Vandenberk undertook his course Melbourne was again placed in lockdown, and from the outset of his course he was made aware the units may be required to be completed via Zoom.
The Tribunal found there was nothing “unusual, uncommon or abnormal” about Mr Vandenberk’s circumstances that could have prevented him withdrawn from the unit prior to the census date.
The Tribunal placed no weight on the medical evidence Mr Vandenberk provide from Dr Bhatti as it was based entirely on Mr Vandenberk’s self-reporting and was for a period outside of the trimester dates in which Mr Vandenberk was undertaking the units.
The Tribunal found there was no evidence Mr Vandenberk had sought medical treatment for his mental health condition whilst he was enrolled at SAE. The Tribunal was not persuaded by Mr Vandenberk’s oral evidence that he was prevented from attending medical appointments during COVID-19 lockdowns, as his medical records indicated he had attended his general practitioner in respect of his bad complaint during a lockdown period.
The Tribunal did consider that emails between Mr Vandenberk and his lecturer indicated that after the census date he was struggling to complete the course requirements.
·19 July 2021 Mr Vandenberk emailed his lecturer:
Nick sorry I didn't attend today, I’m currently experiencing mental health issues during this difficult time which has made it hard for me to attend today's class, I’m having quite a lot of trouble with some of the subjects I have reached out to student services for extra assistance and to explain my circumstances but have still not had any luck, thanks kyle
·10 August 2021 Mr Vandenberk emailed his lecturer:
Hey Nick I'm.currenly in the process of getting in contact with student services as I am really struggling with the overall content and it really isn't adding up for me last few class I didn't attend as I feel lost and unsure and I'm struggling quite alot doing online classes, I originally enrolled under the intention that classes were on campus.
I do apologise I can not make sense of alot of the things that are explained I am feeling as this course is being all rammed into a short time frame I haven't done any studying since year 6 and 7 and have been trying to get some sort of academic support witch I have been reaching out for 5 weeks now, but none of the students services are responding to my emails and since it's all online I'm only allowed to email them
·2 August 2021 Mr Vandenberk lecturer emailed him the following message:
AUM172 work still to be completed
According to my records you still have work to be completed for AUM172 Music Materials in order to finalise the trimester.
This needs to be completed by 9am tomorrow (Friday).
Please email me to let me know when you have completed anything outstanding.
Also make sure you get in touch if you are in any way unsure regarding what needs to be completed.
·20 August 2021 Mr Vandenberk emailed his lecturer:
Hey Nick I've been on my computer most the week trying to catch up with both classes, I still stuck with project 1 melody, I appreciate the meeting the other day but 10 minutes didn't really help a big lot, ive requested an extension as will has advised me, im finding it very hard to write a chord progression for my track and am searching endlessly over the internet to find additional information, do you have any additional resources I could look at that could help me with building chord progressions and understand its structure any information will be greatly appreciated, thanks kyle.
Also make sure you get in touch if you are in any way unsure regarding what needs to be completed.
However, the Tribunal found based on the evidence, that Mr Vandenberk’s circumstances did not make it “impracticable” for him to complete the requirements for Unit AUM172. The Tribunal does not deny it may have been difficult for Mr Vandenberk to complete the unit, however that is not the bar he needs to get over. As Mr Vandenberk had been able to successfully pass unit AUM173 in the same time period as unit AUM172, this alone, demonstrated that it was not impracticable for him to complete the unit. Mr Vandenberk’s oral evidence that he had been able to pass the other unit as he had undertaken it during a trimester not impacted by COVID-19 lockdowns was not borne out on the evidence.
The Tribunal in reaching this determination referred to the decision of Deputy President Forgie in Zabaneh and Secretary, Department of Education and Training [2016] AATA 569, where she found at [45]:
…As unfortunate as it is that Mr Zabaneh does not enjoy good health and that his parents have died, we are not satisfied that his circumstances were such that it was impracticable for him to complete the requirements of each unit within the relevant semester as required by s 104-30(c). "Impracticable" means "... not able to be done".[39] On the evidence, it might have been difficult for him to do so but the circumstances on which Mr Zabaneh relies were not such that completion of the requirements of the four units of study was not able to be done...
CONCLUSION
Pursuant to section 104-30 of the Act and Part 3 of the Administration Guidelines, special circumstances only apply to a person where the circumstances are: beyond a person's control; and make their full impact on or after the census date; and make it impracticable for the person to complete the requirements for the unit of study during the relevant study period.
There was no dispute that Mr Vandenberk had not withdrawn from his units prior to the census date.
The Tribunal found that Mr Vandenberk’s mental health issues and COVID-19 lockdowns as a whole were beyond his control, however their full impact was known before the census date; and therefore did not satisfy the requirements of the Act to make it impracticable for him to complete the requirements for the Units of study at SAE.
The Tribunal is therefore satisfied that Mr Vandenberk’s circumstances do not amount to special circumstances, as required under section 104-25(1)(c) of the Act, in order for Mr Vandenberk’s FEE-HELP balance to be re-credited with an amount equal to the amount of FEE-HELP assistance he received for the Units of study at SAE.
The Tribunal questioned what genuine assessment SAE had made to ascertain Mr Vandenberk’s capacity to undertake a diploma course having not undertaken any education for many years and having left school at year 9. The Tribunal also questions whether it was appropriate for SAE to accept Mr Vandenberk‘s enrolment in the Diploma course given its own assessment of his limited educational background. The Tribunal noted SAE on 7 May 2021 had completed an experience-based entry form for Mr Vandenberk’s enrolment. SAE assessed Mr Vandenberk as having had provided sufficient evidence of understanding of his discipline group, participation in professional practice, consumer versus producer behaviour, aspirational questions, their journey as learner and noted the following additional information:
Applicant has limited secondary education background recommend 30 points only in 21T2 including AUM173 and one other module
The Tribunal was impressed by Mr Vandenberk’s capacity during the hearing and does not question his intellectual ability or desire to undertake a course in music production, but as Mr Vandenberk had been out of formal education for many years, the Tribunal was not convinced that he was provided with all the tools necessary to undertake study at a diploma level. The Tribunal considered Mr Vandenberk may have been better suited and more appropriately guided towards undertaking a transition to higher education course or one of the numerous free TAFE courses available in the first instance to better prepare him for the rigors of higher education.
The Tribunal is aware that this decision will have significant financial implications for Mr Vandenberk and would recommend he explore options with the ATO in setting up a payment plan or deferral of payment. As a last resort he can apply to the Department of Finance for a waiver of the debt.
Setting up a payment plan If a person owes a debt to the ATO which includes a compulsory repayment or overseas levy repayment and they can’t pay on time, the ATO may allow the client to enter into a payment plan to pay their debt in instalments. A payment plan must be negotiated directly with the ATO, go to Deferring a repayment for the year If a person believes that making their compulsory repayment would cause them serious hardship or there are other special reasons why they should not have to make a compulsory repayment, they can apply to the ATO to have that amount (or part of it) deferred. To do this, the person will need to complete a Deferring your compulsory repayment or overseas levy form. The form will ask the person for a detailed statement of their household income and expenditure to justify their claim of serious hardship. Additional information and the application form can be found at The ATO will advise the person of its decision in writing within 28 days of receiving that person’s application. If a person is unhappy with the ATO’s decision, they may apply to the ATO (within 28 days after the day they receive notice of the decision) to have it reviewed. If the person is still unhappy with the ATO’s decision following the internal review, they may then apply to the Administrative Appeals Tribunal (AAT) to request an external review. The person must lodge their application with the AAT within 28 days after the day they receive the ATO’s letter advising them of the outcome of its internal review. The ATO can provide more information regarding this process
Waiving (or cancelling) HELP debts A waiver is a special concession, granted to a person or organisation as a last resort, which extinguishes a debt owed to the Commonwealth. This means that the debt is completely forgiven and can no longer be recovered. The waiver of debt power is discretionary, which means there is no situation that creates an automatic entitlement to a waiver of debt. The waiver of debt mechanism is generally not used where other viable avenues of redress are available – such as the special circumstances provisions, grievance processes, and internal or external review mechanisms. For more information on this process, search ‘waiver of debt’ on the Department of Finance website
DECISION
The Tribunal finds that Mr Vandenberk does not meet the requirements of s 104-25(1) of the Act, and as such he is not entitled to have his FEE-HELP balance re-credited. Therefore, the decision of SAE, acting on behalf of the Secretary of the Department, dated 5 May 2023 is affirmed.
The Tribunal wishes Mr Vandenberk well with his ongoing desire to get into music production and would encourage him to speak to SAE directly about what options are available for him to complete unit AUM172 without incurring any additional tuition fees.
The Tribunal affirms the decision under review.
I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO
.................................[sgd].......................................
Associate
Dated: 14 June 2024
Date of hearing: 27 May 2024 Applicant: Self-Represented Advocate for the Respondent: Mr Adam Cunynghame Solicitors for the Respondent: Sparke Helmore
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