Vanessa Juresic and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education
[2013] AATA 338
[2013] AATA 338
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4612
Re
Vanessa Juresic
APPLICANT
And
Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 24 May 2013 Place Sydney The decision under review is affirmed.
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Senior Member A K Britton
CATCHWORDS
HIGHER EDUCATION — Student assistance — Whether FEE-HELP can be re-credited — Whether it was not possible for the applicant to apply for re-crediting before the expiry of the application period — Pre-condition not met — Decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) – ss 104-25; 104-35; Part 3-3; Part 4-1
REASONS FOR DECISION
Senior Member A K Britton
24 May 2013
In July 2012 Ms Vanessa Juresic learnt that she had a “HECS debt” of about $9,000 relating to three units of study in which she had enrolled in 2009, but did not undertake, at Charles Sturt University (the University). Ms Juresic challenged that decision and was successful in respect of all but one unit of study — Accounting and Information Systems (the disputed unit of study). That unit was taught in the first semester of 2010. The effect of that decision was to reduce Ms Juresic’s HECS debt relating to the course to about $2,500.
The stated reason given by the University for refusing to re-credit Ms Juresic for the disputed unit of study was because she had not applied for a re-credit before the end of the “application period” that is, 18 June 2011 (s 104-35 of the Higher Education Support Act 2003 (Cth) (the Act)). Ms Juresic contends that she did not become aware of the requirement to apply for a re-credit until after the application period and had assumed that the University had treated her as having withdrawn from the course. She asserts that the debt was the result of maladministration on the part of the University and submits that the proper course in those circumstances is to waive the debt.
Ms Juresic now seeks review by the Administrative Appeals Tribunal of the University’s decision to refuse to re-credit her “FEE-HELP balance” in respect of the disputed unit of study. Whether that amount can be re-credited turns on whether it was not possible for Ms Juresic to apply for a re-credit prior to 18 June 2011, and, if so, whether “special circumstances” apply (ss 104-25(1)(c) and 104-25(1)(e) of the Act).
STATUTORY FRAMEWORK
The Act provides that a student may be entitled to FEE-HELP assistance for units of study for which they are not “Commonwealth supported” (Part 3-3 of the Act). Where an eligible student elects to receive FEE-HELP assistance their tuition fees are paid by the Commonwealth directly to the student’s higher education provider, in this case Charles Sturt University. As a consequence a debt is created, payable by the student to the Commonwealth (HECS debt). The debt is recoverable through the taxation system once the student completes their course of studies and their income reaches a prescribed level (see Part 4-1 of the Act). The amount of the debt is determined by, among other things, the number of units of study in which the student was enrolled and the tuition fees payable for each unit.
Where a student is enrolled in a unit of study at “census date” (a date determined by the relevant education provider, not less than 20 per cent of the way through the course) their “FEE-HELP balance” is increased by an amount allocated to that unit of study, irrespective of whether they successfully complete that unit.
The Act provides for the re-crediting of a student’s FEE-HELP balance in certain circumstances. The applicable provision in this case is s 104-25 which provides:
Main case of re-crediting a person's FEE-HELP balance
…
1A higher education provider must, on the * Secretary's behalf, re-credit a person's * FEE-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
…
(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 FEE-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.
WAS IT NOT POSSIBLE FOR MS JURESIC TO APPLY FOR A RE-CREDIT BEFORE 18 JUNE 2011?
To put the submissions made by the parties in context it is necessary to outline some background facts.
In October 2009 Ms Juresic enrolled in a graduate certificate in accounting and financial management, to undertake one unit of study in the first semester of 2010: Accounting and Information Systems, and a further two units in the second semester: Management Accounting for Costs and Control, and Financial Accounting. According to Ms Juresic, shortly after enrolling she decided not to continue in the course because of a change in career plans. It is not in dispute that Ms Juresic did not undertake any of the three units of study.
In a statement filed with the Tribunal on 18 March 2013 Ms Juresic wrote that in early February 2010 she telephoned the University and advised of her decision to withdraw from the course and was told that she must return any course material and provide written notification of her decision to withdraw. She gave this account of that conversation:
Vanessa Juresic (VJ):“This is ridiculous I am going to have to incur substantial postage costs to return these readers. I have never received, in prior courses, material of such bulk and I am going to have to pay to send it back”.
Staff member (SM): “Unfortunately that’s what you have to do when you cancel a course”.
Ms Juresic claimed that notwithstanding her concerns about the associated costs she returned the course material by regular post and enclosed a letter advising of her decision to withdraw from the course. She did not make a copy of that letter and has no supporting evidence that the parcel was sent.
Ms Juresic stated that in July 2010 she rang the University after receiving material which indicated that she remained enrolled in the course. She gave this account of that conversation:
VJ: “I’ve just received course material for a course I told you I was not continuing.”
SM: “We may not have received or documented the letter or the course material because we have changed our system since then.”
VJ: “What do you mean?”
SM: “We have to contact all the course co-ordinators to make sure they still don’t have it in a brief case or on their desk.”
VJ: “That’s ridiculous.”
SM: “You will have to withdraw from the course online or with the appropriate form.”
According to Ms Juresic when told she would be sent a withdrawal form she told the staff member that she would not be completing it as to do so would be an “admittance of guilt”. She claimed she also told the staff member to call her back if there was an issue following her investigation into her original withdrawal from the course.
After that conversation Ms Juresic took no further steps in relation to her enrolment and claimed that she did not discover that she was required to repay a HECS debt until advised by her accountant in July 2012.
Tendered in these proceedings was a copy of a record made by a staff member of Student Central, a unit within the University charged with dealing with student enquiries, of a telephone conversation with Ms Juresic on 10 August 2010. (Ms Juresic concedes that she was mistaken in her recollection of contacting the University in July.) It records Ms Juresic stating that she needed to withdraw from the course and being told that she would be provided information by email setting out about how to do so. The email, which Ms Juresic concedes she received, stated that to withdraw from a course after “HECS census date” an approved form must be completed. The emails contained a link to that form. The email also contained information about how to apply for a remission of the debt in the event that approval to withdraw from the course was granted.
The University’s Director of Student Studies, Mathew Evans, stated that a search of the University’s records, including Ms Juresic’s student file, revealed that there was no record of phone conversation being made by Ms Juresic to the University in early 2010. He stated that in the first half of 2010 enquires of that type were dealt with by the predecessor to Student Central, Student Administration. He claimed that staff were instructed to record any dealing with a student that might trigger an administrative action, that is, impact on a student’s enrolment or their FEE-HELP balance. He also stated that the University had no record of receiving a letter from Ms Juresic advising of her decision to withdraw from the course. Mr Evans thought it was possible but improbable that the University would have no record of communications had the University either received a letter of withdrawal or been telephoned by Ms Juresic in the early part of 2010. He testified that the University had not received any similar complaints from students in relation to this period. He pointed out that according to University records the course material for the disputed unit of study had not been returned.
FINDINGS AND CONCLUSIONS
As Ms Juresic did not apply for a re-credit of her FEE-HELP balance before 18 June 2011, the power conferred by s 104-25 to re-credit the FEE-HELP balance for the disputed unit of study can only be exercised if I am satisfied that it was not possible for Ms Juresic to have made an application for a re-credit before that date.
The only material fact in dispute is whether Ms Juresic took steps to withdraw from the disputed subject in the early part of 2010. Even if that claim is accepted, the evidence makes plain that by August 2010 Ms Juresic was on notice that according to University records she remained enrolled in the course.
Ms Juresic explained that she decided not to heed the advice given by the University because she had formed the view that to do so would amount to an “admission of guilt” and it fell to the University to contact her “if there was an issue following the investigation into her original complaint”. Leaving to one side the absence of any supporting record of that comment being made, the University was not bound to follow Ms Juresic’s ultimatum. Not only did the email sent on 10 August 2010 state in unequivocal terms that Ms Juresic must complete the prescribed form, as the University points out, Ms Juresic had declared in her application for FEE-HELP assistance made in December 2009, that she had read the FEE-HELP information booklet, which gave advice to the same effect.
Having received that advice Ms Juresic took no steps to remedy the situation. Nor, after allegedly directing the University to contact her should “an issue” remain with her enrolment, did she make enquiries about whether that directive had been followed. As pointed out by the University it was open to Ms Juresic at any time to access her University e-Communications folder, which she had done in the past, to enquire about her enrolment status.
Ms Juresic states that the University’s decision to refuse to re-credit her FEE-HELP balance in respect of the disputed unit of study is not only unfair but inconsistent with the decision to re-credit her FEE-HELP balance for the second semester subjects in which she had been enrolled. The University decided to treat Ms Juresic as having withdrawn from those courses before census date notwithstanding that she did not contact the University until 10 August 2010, four days after census date. Apparently the University decided to take a lenient approach to applications for withdrawal made around that time because of delays in processing student enquiries in this period. It is not surprising that the University decided not to treat the disputed unit of study, a first semester subject in the same way given that by August 2010, close to six months had passed since its census date, 26 March 2010.
To exercise the power to re-credit Ms Juresic’s FEE-HELP balance for the disputed subject I must be satisfied that it was not possible for her to have made an application for a re-credit before 18 June 2011. Ms Juresic was on notice from August 2010 that she remained enrolled in the disputed unit of study. The University’s email of 10 August 2010 clearly set out the procedures to be followed to effect a late withdrawal and apply for a re-credit. She chose to ignore that advice. In those circumstances I could not be satisfied that it was not possible for her to have made an application for a re-credit before 18 June 2011.
As the pre-condition to the exercise of the power to re-credit Ms Juresic’s FEE-HELP balance has not been satisfied I must affirm the decision under review.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
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Associate to Senior Member A K Britton
Dated 24 May 2013
Date(s) of hearing 16 May 2013 Advocate for the Respondent Shane Maundrell, Department of Industry, Innovation, Science, Research and Tertiary Education
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