William Mills and Secretary, Department of Education
[2013] AATA 765
[2013] AATA 765
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0005
Re
William Mills
APPLICANT
And
Secretary, Department of Education
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 25 October 2013 Place Adelaide The decision under review is affirmed.
........................................................................
Deputy President K Bean
CATCHWORDS
HIGHER EDUCATION - Student assistance - Whether applicant's circumstances constituted "special circumstances" justifying remission of HECS-HELP debt - Decision under review affirmed.
LEGISLATION
Higher Education Support Act 2003, ss 87-1, 36-20(1), 36-21(1)-(2) and 238-10(1)
SECONDARY MATERIALS
Administration Guidelines 2012, Chapter 3 (28 November 2011)
REASONS FOR DECISION
Deputy President K Bean
25 October 2013
INTRODUCTION
In 2012 the applicant, Mr Mills, was enrolled in a Bachelor of Information Technology (Software Development) course at the University of South Australia. However, during the Second Semester he encountered difficulties with two of the subjects he was then enrolled in, namely COM2019: Artificial Intelligence (the AI unit) and INFT3025: ICT Project[1] (the ICT Project unit). These difficulties ultimately resulted in him withdrawing from those two subjects on or about 9 September 2012.
[1] This is an abbreviation of “Information and Communications Technology Project”.
As Mr Mills withdrew from both subjects after what is known as the “census date” for the subjects, which was 31 August 2012, he incurred a “HECS-HELP” debt in respect of Commonwealth assistance provided to him in relation to each subject. He subsequently applied for remission of that debt on the basis of “special circumstances”. However his request for remission was unsuccessful, both at first instance and on review.
Mr Mills has now sought review by this Tribunal of the decision to refuse his request for remission, giving rise to these proceedings.
Before identifying the issues arising from Mr Mills’ application, and addressing those issues, I will first outline the applicable statutory framework.
THE STATUTORY FRAMEWORK
Section 87-1 of the Higher Education Support Act 2003 (the Act) explains HECS-HELP assistance as follows:
What this Part is about
A student may be entitled to HECS-HELP assistance for units of study for which he or she is Commonwealth supported, if certain requirements are met.
The amount of assistance to which the student may be entitled is based on his or her student contribution amounts for the units, less any up-front payments. The assistance is paid to a higher education provider to discharge the student’s liability to pay his or her student contribution amounts.
Under the terms of the Act, HECS-HELP assistance is provided in the form of a loan which the student is generally obliged to repay, and the liability to repay a HECS-HELP debt is incurred if the student is enrolled in the relevant unit of study as at the census date for that unit.[2]
[2] Higher Education Support Act 2003, s 137-5(3). As defined in the Commonwealth Supported Students Information Booklet, HELP stands for Higher Education Loan Program, and was previously known as HECS, which stands for Higher Education Contribution Scheme.
However, as is helpfully explained in the respondent’s Statement of Facts, Issues and Contentions:
15.A person can apply to a higher education provider, for the remission of the person’s HECS-HELP debt in respect of unit of study [sic], under section 36-20 of the Act. Subsection 36-20(1) sets out the circumstances in which a higher education provider must, on the Respondent’s behalf, determine that section 36-20 applies to a person. Relevantly, paragraph 36-20(1)(d) of the Act provides:
(d)the provider is satisfied that special circumstances apply to the person (see section 36-21);[3]
[3] Respondent’s Statement of Facts, Issues and Contentions dated 28 May 2013, p 3.
Subsections 36-21(1) and (2) of the Act also relevantly provide that:
36‑21 Special circumstances
(1) For the purposes of paragraph 36‑20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:
(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; and
(c)make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
(2) The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.
Subsection 238-10(1) of the Act also provides that the Minister may, by legislative instrument, make guidelines of various kinds, including administration guidelines. The Minister made the Administration Guidelines 2012 on 28 November 2011 and Chapter 3 of the Administration Guidelines provides as follows with respect to “special circumstances”:
3.1 PURPOSE
3.1.1The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:
(a) are beyond the person’s control (paragraph 36-21(1)(a) of the Act;
(b) do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 36-21(1)(b) of the Act); and
(c) 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 (paragraph 36-21(1)(c) of the Act.
3.5CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1A 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.
3.5.5The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.
3.10CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
3.10.1A 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.
3.15CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS
3.15.1A 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.
The Administration Guidelines are a legislative instrument within the meaning of s 5 of the Legislative Instruments Act 2003 (Cth) and as such are binding on a decision-maker. Subsection 36-21(2) of the Act also provides that a decision under s 36-21 “must be in accordance with” the Administration Guidelines.
ISSUES
It accordingly follows that, in broad terms, the issue for my determination is whether, in respect of either or both of the relevant units of study, “special circumstances” applied to Mr Mills. This in turn requires consideration of whether the relevant circumstances:
(a)were beyond Mr Mills’ control;
(b)did not make their full impact on Mr Mills until on or after the census date; and
(c)made it impracticable for Mr Mills to complete the requirements for the unit during the period in which he was to undertake the relevant unit.
As I have noted above, in considering whether Mr Mills fulfilled these requirements, I must also have regard to the terms of the Administration Guidelines.
I propose to proceed to address these issues with respect to each of the relevant units in turn, commencing with the AI unit.
THE AI UNIT
Evidence and Contentions
In his evidence at the hearing, Mr Mills said that the main reason he did not withdraw from the AI unit before the census date was that it was not clear to him that the census date was different to the date before which he could withdraw from the course without failing, which was 14 September 2012. He also said, both at the hearing and in his written submissions, that he had clearly told his teacher that he was intending to withdraw from the course on 16 August 2012, i.e. before the census date. He relied in particular on a “post” directed to his teacher and which he placed on the University website on 16 August 2012 as follows:
hi. thank you again for trying to help me out.
Can you please tell me:
1. is assignment 2 going to be similar to this assignment,
2. is the exam going to be similar to this assignmnet?[sic]
If so, i’ll withdraw and enrol in a different degree to avoid this subject, as I feel that this subject expects too much above what the course teaches.
Also, maybe others are in a better position to solve those puzzles in a [sic] unusual and new programming language, but I dont [sic] … solve mind bending puzzles, and on top if [sic] it learning the theory in the A1 text book.
Can you let me know so that I can withdraw if the course is focussed on similar mind bending puzzles, and if we are expected … decent mark?
thanks for your time.[4]
[4] T1/15.
Mr Mills’ teacher, Mr Wolfgang Mayer, responded on 17 August 2012 as follows:
I have published a sample exam paper on the course website (scroll down to the bottom of the page).
Yes, Assignment 2 will be similar to Assignment 1, except that we will be looking at Prolog rather than the CSP solver.[5]
[5] T1/15.
In his written material, Mr Mills also stated that he had not submitted any more work to be marked after the above exchange, which was “evidence I was going to withdraw”. He also referred to having believed that he would receive an email warning of the final census date, as he said he had in previous semesters.[6] He also stated that he had told the course coordinator, Dr Grant Wigley, that he would not be able to complete the course as the course was not providing enough introductory material.[7] He also explained that although he had formed the intention to withdraw from this subject in mid-August, he was leaving it until the “last minute” to decide whether he would also withdraw from the ICT Project unit.
[6] T1/5.
[7] Submissions of Mr Mills filed 31 May 2013.
Mr Mills also relied upon an email exchange between himself and Dr Wigley on 9 September 2012, after the census date, as follows:
hi.
I am going to withdraw in AI, however I was not given any warning that the Census date was the withdrawal date that no fee is incurred. I just read that I have to pay after the August 31 for the course. This seems wrong, as I told the lecturer that I was going to withdraw in the second or third week.
additionally I wasn’t told that the project “no pay” withdrawal date was August 31. (via email as has been the case every semester for at leasat [sic] one course).
I’d like to withdraw from these, but dont [sic] want to pay (since i was under the impression that the “no pay” date was 14 September.
Can this be arranged?
Thanks
William.
………………………………………..
Hi William,
The census date is the last day to withdrawal [sic] without being charged. The next date is the withdrawal without fail, which is coming up. I have little to do with finance so you will need to contact campus central for that.
Thanks
Grant[8][8] Exhibit 3, Statement of Dr Grant Wigley, Annexure “F”, pp 33 and 34.
Accordingly, Mr Mills contended that he had confused the census date with the “withdraw without failing” date, and should not be penalised for this mistake.
However, one of the difficulties with Mr Mills’ arguments is that, on the material before me, it appears that he was notified numerous times as to the census date for this course, and the difference between the census date and the “withdraw without failing” date.
For example, Mr Mills acknowledged under cross-examination that he completed the required enrolment checklist for each year of his enrolment. He also did not dispute that upon successfully completing his enrolment, a notice would have appeared on his computer screen advising him of “study period key dates” and giving clear definitions of the terms “census date”, “withdrawal date” and “withdrawal-fail date”.[9]
[9] See Exhibit 2, Statement of Michael Lentakis, pp 21 and 64.
Mr Mills also acknowledged that he applied for Commonwealth assistance in respect of the AI and ICT Project courses and as part of that process had to complete the Commonwealth Assistance Form. Further, he did not dispute having made the required declaration at the end of that form including agreeing to the statement “I have read the Information for Commonwealth supported students booklet and I am aware of my obligations as a Commonwealth supported student.”[10] He said he did not recall receiving the booklet although he “probably glanced through it”, and did not dispute that the booklet clearly set out[11] the consequences of withdrawing on or before the census date as opposed to after the census date.
[10] Exhibit 2, p 34 and 40.
[11] Exhibit 4, pp 51 and 52.
Mr Mills also did not deny assenting to a declaration as part of the enrolment process that he would manage his own enrolment at the University by “… withdrawing by the relevant census date for deletion of a course from my record”.[12] Mr Mills further did not dispute that the Academic Calendar for 2012 was on the University of South Australia website and that this calendar contained the relevant dates for Second Semester, including the census date of 31 August 2012 and the “final date for withdrawal without fail” of 14 September 2012. He said he may have looked at this but said he probably did not.
[12] Exhibit 2, p 32.
When it was put to him that information about the term “census date” had been readily available to him at the relevant time, Mr Mills responded by asserting that the words “census date” should have been defined each time they were referred to in information supplied by the University, so as to avoid confusion.
Consideration
Having carefully considered his evidence and arguments, I accept that Mr Mills was genuinely confused as to the meaning of the term “census date” and that he confused this date with the “withdraw without failing date”, such that he thought he could withdraw from the AI course by 14 September 2012 without incurring a HECS-HELP debt for that unit. However, as I have indicated above, in order to qualify for remission of his debt on the grounds of “special circumstances”, Mr Mills must first establish that his circumstances were beyond his control within the meaning of the Administration Guidelines.
Were the relevant circumstances beyond Mr Mills’ control?
Having regard to all of the material, including Mr Mills’ evidence, I am satisfied not only that Mr Mills genuinely believed the census date to be later than it actually was, but also that this was the main reason Mr Mills did not withdraw from the AI unit before the census date. I am also satisfied that although information was readily available to him which would have enabled him to accurately understand the difference between the “census date” and the “withdraw without failing date”, and ascertain precisely when each of these dates was, Mr Mills took no steps to inform himself about these dates, or ensure that his assumed understanding was correct. Consequently, I am also satisfied that these circumstances were not beyond his control and that they were due to his inaction, for which he was responsible.
As I have indicated, it would have been an easy and quick matter for Mr Mills to clarify the meaning of these terms so as to ensure that he withdrew from the AI unit before the census date. It is clear that he was considering withdrawing from the AI unit on 16 August, since on that date he stated to Mr Mayer that he was intending to withdraw if the next assignment was going to be similar to Assignment 1. Mr Mayer replied on 17 August 2012 indicating that the next assignment would be similar, and nothing subsequently changed between that date and the census date of 31 August 2012. Therefore the only reason that Mr Mills did not withdraw between 17 August and 31 August 2012 would appear to have been his inaccurate understanding as to when the census date was, combined with the fact that he was still considering whether to withdraw from the ICT Project course. As he could easily have clarified when the census date was within that period, so as to ensure that he did withdraw within the required timeframe, as I have indicated above, I am not satisfied that Mr Mills’ circumstances with respect to the AI unit were “beyond his control” within the meaning of s 36-21.
It therefore follows that Mr Mills’ circumstances were not “special” within the meaning of ss 36-20(1)(d), and it is unnecessary for me to proceed to consider when the relevant circumstances made their full impact on Mr Mills, and whether they made it impracticable for him to complete the course.
THE ICT PROJECT UNIT
Evidence and Contentions
It is apparent from the material that the circumstances surrounding this unit were somewhat more involved than those surrounding the AI unit.
There is no dispute between the parties that in relation to this unit, Mr Mills was required to complete an IT related project in association with an industry representative. There is also no dispute that he chose to do the project with a third party industry representative operating in the United States (described in the material as his ‘client’), and that he had some difficulties with achieving the level of communication with and cooperation from that person required to enable him to progress the project. Further, there is no dispute that, as a result of these difficulties, on 8 September 2012 Mr Mills wrote to Dr Wigley stating in part:
To be blunt, I plan to withdraw from the course if there isn’t some extremely good reply from the client before the withdrawal deadline 14th September.[13]
[13] Exhibit 3, Statement of Dr Wigley, p 28.
Mr Mills has also provided copies of emails between himself and his American client, which confirm that in some instances there were some delays between his emails to that person and their replies. Mr Mills also asserted in his oral evidence that by the time he withdrew from the ICT Project course, he still did not have access to his client’s server and so was not able to actually start the substantive part of the project, albeit that assertion does not appear to be entirely consistent with the email correspondence.[14]
[14] See Exhibit 5, email from Mr Mills’ American client dated 27 August 2012.
Mr Mills further asserted that, because of delays on the part of his client, he had made little progress with the project by early September, which was approximately four weeks into the time allowed for the project. Although he acknowledged that this was still four to five weeks before the date when the assignment was due,[15] he stated that:
It seemed like his circumstances were going to regularly affect the project so much so that it was better to cancel the project and withdraw. Which I did.[16]
[15] Exhibit 3, Annexure B, p 18.
[16] T1/6, [8].
Mr Mills also indicated in the course of his oral evidence that after he sent the email of 8 September 2012 to Dr Wigley indicating that he may have to withdraw from the ICT Project course, he decided to withdraw from both that subject and the AI subject at the same time, which he did on 9 September 2012.
Mr Mills did not dispute that he did not seek an extension with respect to the project, although in his evidence Dr Wigley indicated that an extension could have be given. In his statement, which was tendered into evidence, Dr Wigley said:
26.Mr Mills could have requested extensions of time to assessment task deadlines and/or deferred assessment, in light of the delays he envisaged with his industry representative. This request would have been assessed according to UniSA’s Assessment and Policies Manual 2012.
27.In that regard, if it had been clear that the industry representative was not responding to Mr Mills, I would have been prepared to grant extensions of time to Mr Mills. Additional time could have been awarded up until Friday, 22 February 2013.
28.However, Mr Mills made no such application and I did not see any correspondence he was having with his industry representative prior to him withdrawing from the ICT Project unit.[17]
[17] Exhibit 3, p 4.
Consideration
As with the AI unit, the question for me is whether the circumstances relied on by Mr Mills constituted “special circumstances” within the meaning of ss 36-20(1) and the Administration Guidelines. Accordingly, I propose to consider each of the relevant criteria in turn.
Were the circumstances beyond Mr Mills’ control?
It is clear that the circumstances surrounding the ICT Project course were less within the control of Mr Mills than the circumstances surrounding the AI course. It is apparent from the evidence before me that in attempting to complete the ICT Project course, Mr Mills was reliant on cooperation from his American “client” and he had some difficulties in achieving the level of cooperation he felt he needed. In particular, there were at times delays between his requests to the client and their replies, in the order of a few days.
However, on the material before me, the project commenced in early August such that it was arguably apparent by 31 August 2012 that there had been some significant delays in progressing the project. On the evidence, there was no change in the circumstances surrounding these delays between 31 August 2012 and 9 September 2012, when Mr Mills ultimately withdrew from the course. Accordingly, it is not clear to me on the evidence that he could not have withdrawn from the course before the census date if he had realised that 31 August 2012 was the last date he could withdraw before incurring a HECS-HELP debt.
As with the AI course therefore, it appears to me that the main reason Mr Mills did not withdraw from this course prior to 31 August 2012 was his failure to realise that this was in fact the “census date”, and his confusion as to which date was the census date as opposed to the “withdraw without failing” date. As was the case with the AI course, it was inaction on his part in seeking to clarify when the census date was which led to him failing to withdraw by the relevant date. Accordingly, I am not satisfied that the circumstances which led to Mr Mills withdrawing from this course after the census date were “beyond his control” in the relevant sense and nor am I satisfied that they were “unusual, uncommon or abnormal” within the meaning of the Administration Guidelines.
Did the circumstances make their full impact on or after the census date?
Similarly, as there was no relevant change to the circumstances surrounding the difficulties and delays Mr Mills was experiencing in communicating with his American client between 31 August 2012 and 9 September 2012, other than the passing of a further nine days, I am not satisfied that it could properly be said that those circumstances “did not make their full impact” on Mr Mills until on or after the census date. Rather, it appears that insofar as they constituted a reason for him to withdraw, the relevant circumstances had made their full impact on Mr Mills before 31 August 2012, however it was only on 9 September 2012 that he realised the census date had passed, and this was what prompted him to withdraw from the course on that date.
Did the circumstances make it impracticable for Mr Mills to complete the requirements of the subject?
Further, even if it could be said that the relevant circumstances were beyond Mr Mills’ control and did not make their full impact until on or after the census date, I am not satisfied on the material before me that the circumstances made it impracticable for him to complete the requirements of the course. As I have alluded to above, Dr Wigley has given evidence that it was open to Mr Mills to apply for an extension of time to complete the ICT Project course, and that he could potentially have obtained an extension of time up until 22 February 2013. Accordingly, having regard to both the state of communications between Mr Mills and his client as at the date he withdrew from the course, and the fact that he could potentially have obtained an extension of time to complete the project, I am not satisfied that the circumstances in which he found himself necessarily meant that he could not continue with and complete the course.
Whilst there were some delays in his receipt of replies from his American client, they were communicating regularly up until the date that he withdrew from the course. The client had not indicated that he would not be able to cooperate to the extent necessary for Mr Mills to complete the project and nor had Mr Mills explored this issue with him. Mr Mills also had not explored with Dr Wigley the possibility of obtaining an extension of time for the project before he decided to withdraw from the course.
Therefore, even if I had been satisfied that the relevant circumstances were beyond Mr Mills’ control and did not make their full impact upon him until on or after the census date, I would not have been satisfied that they made it impracticable for him to complete the requirements of the course having regard to the terms of the Administration Guidelines.
CONCLUSION
For these reasons, I have concluded that Mr Mills has not demonstrated the existence of “special circumstances” with regard to either the AI course or the ICT Project course in which he was enrolled in 2012, such that the HECS-HELP debt he incurred with respect to either course can be remitted pursuant to ss 36-20(1) of the Act. Accordingly, I am obliged to affirm the decision under review.
I should also make mention of the fact that Mr Mills attended the bulk of the hearing in this matter, on 14 August 2013, by telephone. However during the course of a discussion before lunch about his need to attend to another commitment in the afternoon, Mr Mills terminated the phone connection with the Tribunal by hanging up his phone. As the Tribunal was unable to re-establish contact with Mr Mills thereafter, despite several attempts, the hearing was completed in Mr Mills’ absence.
DECISION
The decision under review is affirmed.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ........................................................................
Associate
Dated 25 October 2013
Date of hearing 14 August 2013 Applicant In person by telephone Advocate for the Respondent Mr S Maundrell Solicitors for the Respondent Dispute Resolution, Legal Branch, Department of Education
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