VRQC and Secretary, Department of Education, Skills and Employment
[2021] AATA 4032
•4 November 2021
VRQC and Secretary, Department of Education, Skills and Employment [2021] AATA 4032 (4 November 2021)
Division:General Division
File Number: 2020/4734
Re:VRQC
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Senior Member B. Pola
Date:4 November 2021
Place:Brisbane
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Respondent, dated 30 June 2020.
.................[SGD]...................................
Senior Member B. Pola
Catchwords
HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-credit – whether application made before end of application period – whether period should be waived – special circumstances – mental health conditions and difficult family situation – whether applicant’s circumstances were beyond her control – whether applicant’s circumstances made their full impact on or after the census date – no special circumstances – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administration Guidelines 2012 (Cth)
Higher Education Support Act 2003 (Cth)Cases
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Montenegro v Secretary, Department of Education [2020] FCAFC 210
Sadek and Secretary, Department of Education [2017] AATA 1399
Ullah and Secretary, Department of Education and Training [2018] AATA 2159Wallis v Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2013] FCA 978 (27 September 2013)
REASONS FOR DECISION
Senior Member B. Pola
4 November 2021
BACKGROUND
The Applicant in this matter was granted a confidentiality order due to the sensitive subject matter in this application and is referred to throughout these reasons by the pseudonym, ‘VRQC’. On 25 January 2019, the Applicant, VRQC, enrolled in the following four units of study in a Masters of International Economics and Finance/Commerce for Semester One at the University of Queensland (herein referred to as ‘UQ’)[1]:
ECON7021 The Macroeconomy
ECON7110 Consumer and Firm Behaviour
ECON7520 International Macroeconomics and Finance
ECON7950 Research Methods in Economics
[1] Exhibit R1, Section 37 T Documents, T5, page 75.
The Applicant was advised via reminder email that the census date for withdrawal from her enrolled course without incurring a FEE-HELP liability was 31 March 2019[2]. The Applicant was subsequently issued with a statement from UQ, dated 12 April 2019, indicating the Applicant had incurred a total debt of $16,480 for the four units of study[3].
[2] Ibid, T4, page 63.
[3] Ibid, T6, pages 86 to 87.
The Applicant withdrew from three of her subjects in mid-April 2019, and she remained enrolled in ECON7110 Consumer and Firm Behaviour. Evidence before the Tribunal indicates that on 26 June 2019, the Applicant sought to withdraw from ECON7110 Consumer and Firm Behaviour without academic penalty. The Applicant, in her reasons for withdrawal, stated that she had suffered mental health issues from a family issue. In addition, she stated that she had attached a Student Access Plan (Disability), or ‘SAP-D’. The Tribunal observes that this was approved[4].
[4] Ibid, T5, pages 76 to 85.
Evidence before the Tribunal indicates the Applicant sought extensions to assessment due dates for ECON7950 Research Methods in Economics on several occasions. The first of which occurred prior to the census date and was approved on 27 March 2019. The assessment was originally due on 27 March 2019 and was extended to 30 March 2019. In her reasons for the extension, the Applicant stated that she had a condition which made time management difficult for her and that she had been struggling to meet commitments with respect to her employment as a university tutor (discussed in later reasons of this decision)[5].
[5] Ibid, T13, pages 132 to 137.
On the second occasion, 5 April 2019, the Applicant applied for an extension of a due date regarding an assessment item for the same subject which was due on 8 April 2019 to be moved to 10 April 2019. This was approved on 8 April 2019, and the Applicant indicated in her application that she had an SAP-D[6].
[6] Ibid, pages 138 to 142.
On 4 April 2020, the Applicant applied for the removal of financial liability for the subjects she undertook in Semester One at UQ in 2019 and submitted an accompanying letter, dated 31 March 2020, from her treating consultant psychiatrist to support her request[7].
[7] Ibid, T9, pages 93 to 97.
On 7 May 2020, the academic registrar at UQ refused the Applicant’s application for removal of her FEE-HELP for her four units of study[8].
[8] Ibid, T10, pages 98 to 101.
On 2 June 2020, the Applicant wrote a detailed letter to UQ and requested a review of the decision to refuse her application for removal of her financial liability for her four units of study, which she withdrew from after the census date[9].
[9] Ibid, T11, pages 102 to 111.
On 30 June 2020, UQ’s Deputy Vice-Chancellor (Academic) wrote to the Applicant to advise her that a delegate of the Secretary of the Department of Education, Skills and Employment decided to refuse her request for the removal of her FEE-HELP liability for the four units of study (sent to the Applicant by email on 3 July 2020)[10].
[10] Ibid, T12, pages 112 to 116.
The Applicant subsequently applied to the Administrative Appeals Tribunal (herein referred to as ‘Tribunal’) for review of that decision on 31 July 2020, within the required timeframe[11].
[11] Ibid, T1, pages 1 to 30.
JURISDICTION
Decisions by higher education providers regarding a refusal to re-credit a person’s FEE-HELP under section104-25(1) are reviewable decisions under section 206-1 (Item 2) of the Higher Education Support Act 2003 (Cth) (herein referred to as the ‘Act’).
Applications can be made to the Tribunal under section 212-1 of the Act, for reconsideration of a reviewable decision that has been confirmed, varied or set aside under sections 209-5, or 209-10 of the Act.
The original decision was made on 7 May 2020. A request for a review of this decision by the Applicant was made on 2 June 2020, with the internal review decision maker confirming the decision by UQ on 30 June 2020. The Tribunal therefore has jurisdiction to review this application.
ISSUE
The issue before the Tribunal is whether section 104-25(1) of the Act applies to the Applicant – that is, whether UQ, on behalf of the Secretary for the Department of Education, Skills and Employment, must re-credit the Applicant’s FEE-HELP balance with an amount equal to the amount of FEE-HELP assistance that she received for the four units of study she undertook.
This, in turn, requires the Tribunal to consider whether special circumstances apply to the Applicant in accordance with sections 104-25(1)(c) and 104-30(1) of the Act, whilst also having regard to the Administration Guidelines 2012 (Cth) (herein referred to as the ‘Administration Guidelines’).
LEGISLATIVE FRAMEWORK
The following paragraphs outline the relevant legislative provisions which apply to this application before the Tribunal.
The main provision concerned with re-crediting a person’s FEE-HELP balance is section 104-25(1) of the Act, where Higher Education providers on the Respondent’s behalf must 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
(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 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.
Section 104-30 of the Act regards special circumstances, and provides:
(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.
(3) For the purposes of paragraph 104-25(2)(c), special circumstances apply to the person if and only if Open Universities Australia 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.
Note: The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.
The Tribunal refers to a recent decision of the Full Court of the Federal Court of Australia in Montenegro v Secretary, Department of Education, with respect to the adoption of Administration Guidelines, where His Honour Justice Flick stated[12]:
…Where a provision thus requires that something is to be done “in accordance with” the Administration Guidelines, what is required is that those Guidelines themselves become a “substitute regime” which is to be complied with.
[12] [2020] FCAFC 210 at [25].
His Honour Justice Charlesworth similarly stated in his reasons that the Guidelines form part of the statutory scheme for consideration by decision makers[13]:
…For my part I do not consider the Guidelines to be “relevant considerations” in the sense advanced by counsel for the appellant in the course of submissions. Rather, they form a part of the statutory scheme that conferred, defined and conditioned the decision-maker’s powers…
[13] Ibid, at [64].
In view of the above, the Tribunal ought to have regard to the Administration Guidelines. The Tribunal has transposed the relevant provisions:
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.
CONSIDERATION
This application was heard in Brisbane on 12 October 2021, the Applicant (who was self-represented), and the Respondent (represented by Mr Michael Palfrey of HWL Ebsworth Lawyers) both appeared by video conference. The Tribunal observes that Ms Sonia Harris from HWL Ebsworth Lawyers was also present for the hearing on behalf of the Respondent. The Tribunal heard oral submissions from the Applicant and the Respondent’s representative, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons.
With respect to satisfying the requirements of section 104-25(1) of the Act, the Tribunal is satisfied the Applicant met the requirements of sections 104-25(1)(a), (aa), (d) and (e)(i) of the Act, as the following is relevant to the circumstances of the Applicant:
(a)she was enrolled in her units of study with UQ;
(b)access to the units of study was not provided by Open Universities Australia;
(c)she had not completed her units of study in which she was enrolled during the study period;
(d)she applied in writing to UQ for re-crediting of her FEE-HELP balance for the units of study in question; and
(e)her claim was made within the twelve-month statutory time frame, as required by section 104-35 of the Act.
Therefore, the remaining provision for the Tribunal to consider is section 104-25(1)(c) of the Act, that is, whether special circumstances apply to the Applicant. Before considering this, the Tribunal will provide an overview of relevant evidence.
During the course of the hearing, although the Applicant spoke of a number of, “general life stressors”, her main contention with respect to satisfying section 104-25(1)(c) of the Act, relates to her medical circumstances at the time she undertook the relevant units of study[14].
[14] Transcript (12 October 2021), page 28, lines 3 to 5.
Medical history and circumstances of the Applicant
The Applicant stated during cross-examination that she had suffered depression in late 2015 with suicidal ideations, which she ultimately did not act upon. Following this, she sought help through a clinician. From early 2016, the Applicant was prescribed an SSRI – Luvox[15].
[15] Ibid, page 8, lines 42 to 47; page 9, lines 1 to 4; page 22, lines 14 to 44.
The Applicant, in submissions regarding an earlier request to review the decision not to re-credit the relevant FEE-HELP balance, stated that she had been diagnosed by a psychiatrist in 2015 with Attention Deficit Hyperactivity Disorder (herein referred to as ‘ADHD’), as well as anxiety. The Applicant also went on to state that she had given up on this diagnosis as her treatment wasn’t working, however she remained on Luvox[16].
[16] Exhibit R1, Section 37 T Documents, T11, page 102.
The Applicant, in written submissions and in oral evidence before the Tribunal, stated that she was referred to another psychiatrist in mid-2018 (Dr S, Consultant Psychiatrist), as she had begun suffering panic attacks. The Tribunal observes Dr S had made a similar diagnosis to that of the Applicant’s previous psychiatrist, however Dr S’ diagnosis refers to the Applicant as also having complications from depression or ‘Major Depressive Disorder’. The Tribunal observes that in numerous letters before it, Dr S’ diagnosis of the Applicant has largely remained consistent. The Tribunal refers to:
(a)Letter of 11 June 2019, “…[the Applicant] has been under my care since 13 June 2018 for the treatment of Attention Deficit and Hyperactivity Disorder complicated by anxiety and depression…”[17].
(b)Letter of 31 March 2020, “…[the Applicant] has been under my care since 13 June 2018 for the treatment of Attention Deficit and Hyperactivity Disorder complicated by anxiety and depression…”[18].
(c)Letter of 29 July 2020, “…[the Applicant] has been under my care since 13 June 2018 for the treatment of Chronic Generalized Anxiety Disorder, recurrent Major Depressive Disorder and Attention Deficit and Hyperactivity Disorder…”[19].
[Tribunal redactions]
[17] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, pages 30 to 31.
[18] Exhibit R1, Section 37 T Documents, T1, page 14.
[19] Ibid, pages 12 to 13.
Dr S prescribed the Applicant Ritalin in 2018 for her ADHD and kept her on Luvox. The Applicant stated that this combination of medication had worked for her[20].
[20] Ibid; Transcript (12 October 2021), page 7, lines 42 to 47; page 8, lines 1 to 4; page 23, lines 1 to 9.
In a letter dated 5 May 2021, Dr S provides an overview of a change in the Applicant’s medications which occurred in late 2018, and the resultant effects which she observed in the Applicant over a period of time during the relevant study period in Semester 1, 2019[21]. The Tribunal extracts this below:
[21] Exhibit A3.
On 11.12.2018 it was decided to change from Methylphenidate which is a short acting stimulant that treats Attention Deficit Hyperactivity Disorder.
It requires a dosage regime of four hourly doses, usually requiring four doses per day.
Whilst on the three week holiday over the Christmas period [the Applicant] decided to trial a reduction and possible cessation of the antidepressant Fluvoxamine that she had been prescribed by a Psychiatrist in 2016 for depression and anxiety. Her mood symptoms had been stable and there are risks of drug interactions with this particular antidepressant. In addition, [the Applicant] was interested to see if her anxiety and mood symptoms had resolved with the treatment of her Attention Deficit Hyperactivity Disorder as this is a common result of treatment.
[The Applicant] was reviewed on 13.02.2019 and reported an increase in some physical complaints for which she had seen her General Practitioner.
She also described increase disorganisation, irritability, reduced frustration tolerance and some middle insomnia.
This has coincided with her reducing and ceasing the dose of the antidepressant three weeks prior to presentation. These symptoms were suggestive of a discontinuation syndrome which is common on cessation of a long term serotonergic antidepressant which is what Fluvoxamine is.
It was also considered that possible the long acting Methylphenidate dose was not supplementing adequately her ADHD symptoms
As a result, the dose of the long acting Methylphenidate was increased. On review on 06.03.2019 she reported no further discontinuation of the symptoms. However she described a recurrence of anxiety symptoms, that appeared to be secondary to ceasing the antidepressant Fluvoxamine.
They had come apparent in the context of significant family stressors.
She had commenced an atypical antipsychotic Quetiapine in a very low dose at night with some relief of the anxiety and sleep disturbance.
An alternative antidepressant, Agomelatine, was commenced due to its favourable side effects. It has a different receptor profile to Fluvoxamine and therefore it does not have the same risk of discontinuation, weight gain or drug interaction.
On 23.04.2019 she reported that her mood had become more depressed despite six weeks on the trial of the new antidepressant, Agomelatine, in the context of ongoing external stressors.
[The Applicant] had noticed an improvement in her mood when she changed from the long acting Methlyphenidate back to the short acting Methylphenidate one week before presentation.
This suggested that the deterioration in mood over the six weeks was multifactorial secondary to a poor response to the long acting stimulant formulation trial resulting in an exacerbation of her ADHD symptoms as well as difficulty as a result of managing her multiple stressors, the impact of the stressors themselves, the cessation of a long term antidepressant, Fluxamine, and poor response to the substitute antidepressant.
With trials of antidepressants, it is not able to be predicted that the response and therefore [name redacted, the Applicant] did not withdraw before the census date of 31.03/2019.
On review on 22.05.2019 she presented with symptoms of a depressive episode despite the Valdoxan therapy and the change to Ritalin.
An alternative antidepressant similar to Fluvoxamine was commenced and she showed response to this in the subsequent two weeks.
[Tribunal redactions]
With respect to the Applicant’s main contentions regarding her medical circumstances during the relevant study period, the Applicant has stated that:
(a)The depressive episode she experienced during the relevant study period in Semester 1 2019 was an outlier event despite having a history of mental illness, as the Applicant had not experienced a breakdown in her mental health to the extent which occurred in April and May 2019, since early 2016. The Applicant states that the severe decline in her mental health in April and May 2019 is an outlier event as it is “rare” in the context of her medical history[22].
(b)The Applicant did not feel the need to withdraw from her subjects on the census date as she believed the symptoms she was experiencing (anxiety) would have been addressed when the new medication she had been put on (Valdoxan) had been given time to work. The Applicant insists that she still would not have withdrawn from her subjects if she had known Valdoxan was not going to work for her, as she was used to successfully managing a full-time study load[23].
(c)The Applicant withdrew from three subjects in April once she had become depressed and felt like she could not cope with the full-time subject load. The Applicant continued with one subject, but ultimately her condition had deteriorated again by May 2019[24].
(d)The first time Dr S had treated the Applicant for depression was in April and May, 2019[25].
[22] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, page 10, paragraph 49.
[23] Ibid, page 7, paragraph 32.
[24] Ibid, paragraph 33.
[25] Ibid, paragraph 43.
Other general life stressors of the Applicant
The Tribunal observes the Applicant has identified several other general life stressors in her submissions, which Dr S has also alluded to in various letters submitted to the Tribunal as documentary evidence. The Applicant has conceded in her submissions that whilst these other general life stressors were contributing factors, they were secondary to what she believes was the main cause of the breakdown in her mental health and a relapse of her, “Anxiety and Depression in the period of March to May” in 2019[26]. The Tribunal will summarise the relevant general life stressors:
(a)“Family stressors”, which the Applicant has detailed to the Tribunal in submissions regarding circumstances of her immediate family and conflict which had been occurring. The Applicant stated that as part of the family issues she was experiencing, she was required to perform several tasks in mid-April 2019. The Applicant conceded that the “family stressors” had existed prior to the census date (31 March 2019) and have existed for a long time[27].
(b)“Employment stressors – tutoring job”, which the Applicant stated involved her undertaking some training in February 2019, in preparation for her role which commenced during Semester 1 2019[28]. In a submission before the Tribunal, the Applicant stated this employment, “… was 12 hours of work a week on campus, plus 5 – 6 hours of marking in our own time. This ran from the week of 13 march with the final week being the week of 10 April…”[29]. The Tribunal observes that during cross-examination the Applicant stated that she found the tutoring difficult and desired to stop[30]. Evidence before the Tribunal indicates the Applicant sought approval to defer some of her own assessments for a unit of study she was enrolled in order to meet the demands of the tutoring role[31].
(c)“Employment stressors – employment with family”, with the Applicant stating that she had worked in her family business for many years, whilst undertaking full time study and that the role offered flexibility allowing her to study whilst working during quieter periods[32].
[26] Exhibit A2, Applicant Written Submissions, page 23.
[27] Ibid, page 24.
[28] Transcript (12 October 2021), page 10, lines 30 to 34.
[29] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, page 65.
[30] Transcript (12 October 2021), page 19, lines 33 to 40.
[31] Exhibit R1, Section 37 T Documents, T13, pages 132 to 137.
[32] Transcript (12 October 2021), page 18, lines 43 to 47; page 19, lines 1 to 4; page 44, lines 25 to 38.
The Tribunal observes that Dr S has described several general life stressors in numerous letters with respect to the Applicant, the Tribunal refers to:
(a)Letter of 11 June 2019, where Dr S stated that[33]:
[33] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, page 30.
… Unfortunately, at review in February 2019 she described a relapse of anxiety and depressive symptoms in the context of:
1 A trial cessation of her antidepressant (December 2018)
2 A trial of long acting Ritalin
3 Family/personal stressors
4 Tutoring job
5 Four subject study load …
(b)Letter of 31 March 2020, Dr S repeated the above general life stressors of the Applicant[34].
[34] Ibid, pages 39 to 40.
Do special circumstances apply?
The issue for the Tribunal to consider is whether special circumstances apply to the Applicant. That is, whether the Applicant has demonstrated to the Tribunal that for the units of study in question, their circumstances:
(a)were beyond their control; and
(b)did not make their full impact on them until on or after the census date; and
(c)made it impracticable for them to complete the requirements for the unit of study in the period during which they undertook or were to undertake the unit.
Were circumstances beyond the Applicant’s control?
The Administration Guidelines (transposed in earlier reasons of this decision) state circumstances are considered beyond the Applicant’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 (observing that the situation must be unusual, uncommon or abnormal)[35].
[35] Administration Guidelines 2012 (Cth), paragraph 3.5.
The medical evidence before the Tribunal indicates the Applicant has a diagnosed medical history indicating ADHD, anxiety, and depression (since late 2015/early 2016 to present), corroborated by the diagnoses offered by Dr S in letters of 11 June 2019, 31 March 2020 and 29 July 2020, respectively. It is evident that the medical conditions of the Applicant existed prior to the Applicant’s enrolment in the units of study.
Additionally, the Tribunal accepts that the Applicant has coped with a full study load in the past, whilst concurrently managing her employment. The Tribunal is of the view the Applicant reasonably understood the requirements of her Masters qualification, as she had completed a Bachelor of Business Management and a Bachelor of Commerce, which were conferred to her on 8 December 2018 by UQ (having completed five units of study in Semester 2 of 2018 in order to complete her bachelor degrees).
The Applicant’s main contention is that although she experienced a deterioration in her symptoms associated with her anxiety in early March 2019, prior to the census date (as corroborated in Dr S letter of 29 July 2019), she did not withdraw from her units of study because she expected her change in medication to improve the symptomatology from her underlying mental health conditions. It is worth noting that Dr S, in the letter of 29 July 2019, stated that additional family and work stressors were present at the time of her visit in early March 2019.
The Tribunal accepts that the Applicant could not have reasonably predicted the outcome which the change in her antidepressant and ADHD medication ultimately produced (as corroborated by Dr S in her letter of 5 May 2021).
The Tribunal does not accept the Applicant’s contention with respect to the characterisation of her condition of depression. The Applicant has argued in written and oral evidence that Dr S, “has never described the Applicant’s depression as an ongoing condition”[36]. The Tribunal is of the view that the evidence from Dr S (transposed earlier in these reasons) consistently refers to the Applicant’s depression as a present condition in her diagnosis, and in her letter of 29 July 2020, characterised the Applicant’s depression as, “recurrent Major Depressive Disorder”.
[36] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, page 11, paragraph 55.
The Tribunal observes the Applicant acknowledged in submissions to the Tribunal that she made a conscious decision not to withdraw from her subjects prior to the census date, as she believed her symptoms would resolve on her new medication[37].
[37] Ibid, page 7, paragraph 32; Transcript (12 October 2021), page 30, lines 41 to 47; page 31, lines 1 to 7; page 36, lines 24 to 34.
In her submissions, the Applicant has also stated that it was highly unusual for Valdoxan (prescribed to her in early March 2019) to not have effectively treated her anxiety or symptoms of depression[38]. The Tribunal questioned the Applicant during cross-examination as to whether she accepted there was an associated risk in changing her medication (e.g. that it may not work, or may take time to take effect), with the Applicant stating that she did not accept this[39].
[38] Ibid, pages 11 to 12, paragraph 58.
[39] Transcript (12 October 2021), page 31, lines 6 to 45.
The Tribunal observes the Applicant’s submissions with respect to her trialling Valdoxan[40]:
… The most important thing to note from this discussion is that countless studies have found that Valdoxan has a similar efficacy in treating anxiety and/or depression compared with other antidepressants on the market. But that does not mean it is going to work for everyone, because no antidepressant does…
… But I did not respond to Valdoxan in the sense that it did not improve my Anxiety and it did not prevent Depression. Like any antidepressant, we had to give Valdoxan a few weeks to see if there were any improvements. From the session notes, the only benefit Valdoxan did have for me was a slight improvement in insomnia. I believe that the evidence in the literature supports the contention that despite there being signs and symptoms of Anxiety in March, we did try in that month to treat it. Not only did we try but we selected Valdoxan which had proven efficacy on par with the other antidepressant options on the table. Furthermore, had this medication worked for me it should have prevented the relapse in Depression which soon occurred. I had more reasons than not to believe that I would soon be feeling better and not any worse…
[Tribunal underline for emphasis]
[40] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, page 59.
Whilst the Tribunal accepts that the effects of the change in the Applicant’s medication on her was not within her control, the Tribunal is of the view that it was within the control of the Applicant to withdraw from her subjects prior to the census date. The Applicant’s underlying mental health conditions were long standing – there is evidence that she has suffered from a fluctuation in the past (with reference to the Applicant’s depressive episode in late 2015 and early 2016), and the requirements of her study and employment were understood by the Applicant prior to her enrolment in the units of study.
Upon reflection of the evidence before it, the Tribunal is not satisfied that a fluctuation in the Applicant’s pre-existing mental health conditions would be considered, “unusual, uncommon or abnormal”, in the context of applying sub-paragraph 3.5.5 of the Administration Guidelines.
The Tribunal concurs with the Respondent’s submission[41] that the Applicant’s circumstances are analogous to the relevant authority in Sadek and Secretary, Department of Education[42]. The Tribunal has had regard to the detailed submissions of the Applicant with respect to the application of the facts of this matter to this authority[43], and respectfully disagrees with her submissions. The Tribunal has already addressed the diagnosis of Dr S with respect to the Applicant’s depression in earlier paragraphs of this decision.
[41] Exhibit R2, Respondent Statement of Facts, Issues and Contentions, pages 12 to 13, paragraph 33.
[42] [2017] AATA 1399 at [52].
[43] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, pages 11 to 12, paragraphs 55 to 58.
In making this assessment, the Tribunal has had regard to the Applicant’s submissions with respect to the Disability Discrimination Act 1992 (Cth) (herein referred to as the “Discrimination Act”) and will address these submissions in the later reasons of this decision.
Did circumstances make their full impact on or after the census dates?
With respect to whether the Applicant’s circumstances made their full impact on or after the census date, the Administration Guidelines state 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 for a unit of study if the person’s circumstances occur[44]:
(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.
[44] Administration Guidelines 2012 (Cth), paragraph 3.10.
The Tribunal accepts the medical evidence of Dr S with respect to the Applicant experiencing a depressive episode which made its full impact on the Applicant after the census date, a point which is accepted by the Respondent[45].
[45] Exhibit R2, Respondent Statement of Facts, Issues and Contentions, page 14, paragraph 38; Transcript (12 October 2021), page 37, lines 27 to 31.
The Tribunal again notes that Dr S, in her letters of various dates, has also sought to contextualise this worsening of the Applicant’s underlying mental health conditions in circumstances of other stressors occurring in the Applicant’s life (which existed prior to the census date). The Tribunal observes with respect to the evidence of Dr S, that the Applicant experienced the following:
(a)In her letter of 5 May 2021, Dr S stated the Applicant, “…described increase disorganisation, irritability, reduced frustration tolerance and some middle insomnia…”, in February 2019 (prior to the census date). In addition, Dr S stated that in early March 2019, the Applicant reported, “no further discontinuation of the symptoms” she had been experiencing, but this , “had come apparent in the context of significant family stressors” (again, prior to the census date).
(b)In her letter of 29 July 2020, Dr S stated that her record of consultations with the Applicant, “… before and after the financial census date (31 March 2019) indicate that, although she was experiencing some anxiety symptoms prior to the census date, her mood symptoms progressively worsened subsequent to the census date despite the commencement of a new antidepressant”. However, the Tribunal observes in this letter, Dr S noted that on review of the Applicant in early March 2019 the mild relapse of her anxiety had occurred in the context of, “… Additional stressors included family and work issues…”.
The Tribunal observes that the Applicant has, in the past, coped with exacerbations in her underlying medical conditions when seeking to complete her studies. In submissions before the Tribunal, the Applicant stated that she had suffered from about two to three panic attacks in early 2018, triggering her to see her treating doctor (General Practitioner) and seek referral to Dr S[46]. The Applicant also gave evidence during cross-examination that she had experienced panic attacks in mid-2018[47].
[46] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, page 5, paragraphs 18 and 19.
[47] Transcript (12 October 2021), page 23, lines 11 to 15.
In earlier reasons, the Tribunal found that the Applicant sought extensions for assessment dates for a unit of study on two occasions, one of which occurred prior to the census date. The Applicant stated in her reasons for the extension prior to the census date, that she had a condition which made time management difficult for her and that she had been struggling to meet commitments with respect to her employment as a tutor[48].
[48] Exhibit R1, Section 37 T Documents, T13, pages 132 to 137.
Although corroborative medical evidence from Dr S (namely, her letter dated 29 July 2020) states that the Applicant’s conditions worsened after the census date (despite commencing a new medication)[49], the Tribunal is of the view that a holistic reflection of the evidence suggests the Applicant was struggling to meet the requirements of her studies prior to the census date. As such, the Tribunal is not convinced that the Applicant’s circumstances made their full impact on, or after the census date.
Did circumstances make it impracticable for the Applicant to complete requirements of the units of study in question?
[49] Ibid, T1, page 11 to 12..
The Administration Guidelines relevantly state that 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, “…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”[50].
[50] Administration Guidelines 2012 (Cth), paragraph 3.15.1, sub-paragraph (a).
The Administration Guidelines further state that, a person is unable to complete the requirements for a unit if the person is unable to[51]:
(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.
[51] Ibid, second sub-paragraphs (a), (b) and (c).
The Respondent has contended that the Applicant has[52]:
(a)Failed to establish a causal connection between any of her alleged circumstances and her inability or failure to complete the units of study;
(b)Failed to produce evidence which describes how the condition meant that it was impracticable for the Applicant to complete the requirements of the units of study; and
(c)Not linked the actual effects of their depressive episode with respect to their inability to complete the actual requirements of the units of study.
[52] Exhibit R2, Respondent Statement of Facts, Issues and Contentions, page 15, paragraphs 45 to 46.
With respect to whether circumstances made it ‘impracticable’ to complete study requirements, the Tribunal refers to Ullah and Secretary, Department of Education and Training[53], where Member Hyman stated:
In my view none of the matters canvassed made it impracticable for Mr Ullah to continue his studies. Mr Ullah’s problems with his studies certainly made it more difficult for him to succeed, but they did not make it impracticable to continue, and he acknowledged during the hearing that although internet access in his village was limited, it was not so limited as to make it impossible for him to continue his studies. His loss of employment when he left Pakistan no doubt reduced his income but did not prevent him from studying. His wife’s health, as noted above, did not, on the evidence available to me, change significantly after the census date and so there is no evidence that it had an impact on his ability to study.
[53] [2018] AATA 2159 at [36].
The Tribunal refers to Senior Member A Poljak in Georgiou and Secretary, Department of Education and Training, who stated the following with respect to “impracticable”[54]:
I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. 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 the circumstances were such that it was impractical for this to be done. I note that in the letter of Ms Malone she speaks of the applicant’s cognitive difficulties and its impact on her decision-making capabilities; I give this evidence little weight as it is not contemporaneous to when the applicant allegedly withdrew from the Units, or the census date in 2013.
[54] [2019] AATA 170 at [20].
The Applicant has contended that the session notes summonsed by the Respondent from Dr S provide contemporaneous evidence with respect to the period prior to, and after the census date with regard to the Applicant’s symptoms[55]. The Tribunal observes that Dr S has annotated symptoms such as, “sleep decreased”, “decreased engagement of activities”, “brain fog stops from reading” and “memory decreased forgetful”, in her session notes with the Applicant on 22 May 2019[56].
[55] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, page 15, paragraph 76.
[56] Exhibit R4.
The Tribunal certainly accepts the above described symptoms in the session notes of Dr S from May 2019 would certainly have made it more difficult for the Applicant to complete her studies, however the Tribunal concurs with the Respondent – the patient notes of Dr S do not establish that it would have been impracticable for the Applicant to complete her studies[57].
[57] Exhibit A4, Applicant Statement of Facts, Issues and Contentions, page 15, paragraph 77.
Applicant’s submissions with respect to the Disability Discrimination Act 1992 (Cth)
The Applicant has stated that it is her belief that, “refusing this appeal on the basis that she has had a depressive episode in the past is discrimination on the basis of a disability”[58]. The Applicant in her submissions to the Tribunal has contended that[59]:
… the Tribunal must consider whether in refusing the Applicant’s appeal, the educational authority unlawfully discriminated against the Applicant based on the Applicant’s disability by refusing to confer a benefit on the Applicant through the removal of financial liability pursuant to section 22(2)(a) of the Disability Discrimination Act 1992 (Cth) (‘DD Act’).
The Applicant further claims that pursuant to section 29 of the DD Act, the exercise of any power under a Commonwealth law, in this case being the provisions of the HES Act, must be exercised in a way which does not discriminate against the Applicant on the ground of the Applicant’s disability. The Applicant contends that the Respondent has exercised their power under the HES Act in a way which discriminates against the Applicant on the basis of the Applicant’s disabilities of ADHD and Depression by questioning the impact these conditions would have on the Applicant’s ability to meet the course requirements and refusing the application based on this.
The Applicant asks the Tribunal to determine whether special circumstances apply in this matter having regard to the relevant provisions of the DD Act given the HES Act provisions are Commonwealth laws…
[58] Ibid, pages 9 to 10, paragraph 47.
[59] Ibid, pages 1 to 2, paragraphs 6 to 8.
The Tribunal has carefully read the Applicant’s submissions, with respect to her circumstances and this application, and is satisfied that the Disability Discrimination Act 1992 (Cth) does not confer jurisdiction on the Tribunal with respect to any contraventions. With respect to forming this view, the Tribunal refers to their Honour White J in Wallis v Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education[60]:
… Neither the DD Act nor the Australian Human Rights Commission Act 1986 (Cth) confer jurisdiction on the AAT with respect to contraventions of the DD Act. This means that the AAT itself did not have jurisdiction to determine the issues raised by the two questions. Nor can it be said that the determination of the questions arose necessarily in the review over which the AAT did have jurisdiction.
The question of law, to which s 44(1) of the AAT Act refers, must be a question relating to the jurisdiction of the AAT, or relating to the manner of its exercise in the circumstances of the given case. As the questions of law proposed by the applicant relate to matters over which the AAT did not have jurisdiction, they are not of that kind and cannot therefore enliven the jurisdiction of this Court…
…
Hence, the AAT was not confined to the case as formulated by the applicant. If the determination of discrimination in contravention of the DD Act had been within its jurisdiction, the AAT should have addressed that issue if it was raised on the evidence and material before it. A failure to do so would give rise to a question of law.
However, the AAT is not required to go beyond the evidence and material presented to it which it accepts or, at the least, does not reject…
[60] [2013] FCA 978 (27 September 2013) at [43] to [44]; [47] to [48].
Conclusion
For special circumstances to be established, pursuant to section 104-30 of the Act, all limbs of this test must be satisfied – that is subsections (1)(a), (b) and (c).
Special circumstances apply to a person where it is established that the circumstances: (1) were beyond the person’s control; and (2) did not make their full impact on the person until on or after the census date for the unit of study; and (3) made it impracticable for the person to complete the requirements for the unit during the period which the person undertook or was to undertake the units of study.
The Tribunal has found that:
(a)the Applicant’s failure to withdraw by the census date was not beyond her control; and
(b)the Applicant was struggling to meet the requirements of her studies prior to the census date and, as such, the Tribunal was not convinced the Applicant’s circumstances made their full impact on, or after the census date; and
(c)the evidence before the Tribunal did not establish that it would have been impracticable for the Applicant to complete her studies.
Therefore, the Tribunal has found that the Applicant did not meet any of the limbs of the requisite test with respect to establishing special circumstances, pursuant to section 104-30(1), (a), (b) and (c) of the Act.
The Tribunal therefore finds the Applicant is not entitled to have her FEE-HELP debt for the units of study remitted to her, pursuant to section 104-25(1) of the Act.
Finally, the Tribunal would like to commend the Applicant on the efforts she went to present her application to the Tribunal. Whilst the outcome is not what she would have been hoping for, she certainly went to great lengths to articulate her arguments. The Tribunal wishes her well in her future studies, and no doubt her bright future.
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Respondent, dated 30 June 2020.
I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola.
……….[SGD]……………
Associate
Date: 4 November 2021
Date of Hearing: 12 October 2021
Applicant: VRQC
Applicant Representative: Self-Represented
Respondent: Secretary, Department of Education, Skills and Employment
Respondent Representative: Mr Michael Palfrey (HBL Ebsworth Lawyers)
Annexure 1 – Exhibit Register
| Exhibit Number | Description of Exhibit | Party | Date of Document | Date of Receipt |
| R1 | Section 37 T Documents (pages 1 to 225) | R | 15 September 2020 | 15 September 2020 |
| R2 | Respondent Statement of Facts, Issues and Contentions (pages 1 to 20) | R | 17 June 2021 | 17 June 2021 |
| R3 | List of Authorities | R | Undated | 06 October 2021 |
| R4 | Summons Documents from Dr S | R | Various dates | 11 October 2021 |
| A1 | Applicant Submission – Translation of Dr S Consultation Notes (pages 1 to 28) | A | 15 March 2021 | 15 March 2021 |
| A2 | Applicant Submission – Written Submission (pages 1 to 49) Appendices (pages 1 to 25) | A | 30 March 2021 | 30 March 2021 |
| A3 | Letter from Dr S | A | 05 May 2021 | 06 May 2021 |
| A4 | Applicant Statement of Facts, Issues and Contentions | A | – | 15 July 2021 |
| A5 | Applicant Further Submission (PowerPoint Slides) | A | – | 23 August 2021 |
| A6 | Applicant List of Authorities | A | Undated | 10 October 2021 |
| A7 | Applicant Additional Submission – UNCRPD and Journal Article | A | Undated | 11 October 2021 |
| A8 | Applicant Email Lecture Slides (x2) Study Records Document | A | Undated | 11 October 2021 |
| T1 | Tribunal Direction | T | 27 May 2021 | – |
| T2 | Tribunal Direction | T | 12 August 2021 | – |
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