Young and Secretary, Department of Education
[2024] AATA 31
•17 January 2024
Young and Secretary, Department of Education [2024] AATA 31 (17 January 2024)
Division:GENERAL DIVISION
File Number(s): 2022/4491
Re:Reginald Young
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Senior Member George
Date:17 January 2024
Place:Adelaide
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the Reviewable Decisions of the Respondent dated 2 May 2022
.................[Sgnd]....................................
Senior Member George
CATCHWORDS
HIGHER EDUCATION – HECS-HELP - applicant seeks re-credit of HELP balance –application period not waived – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
CASES
Peters and Secretary, Department of Education, Skills and Employment [2021] AATA 3800
REASONS FOR DECISION
Senior Member George
17 January 2024
The Applicant undertook a course COMM1071 – Introduction to Social Media in 2020 at the University of South Australia (“UniSA”) as part of a Bachelor of Arts (Psychologist). COMM1071 had a census date of 18 December 2020. On 20 December 2020, the Applicant withdrew without failure and incurred a HECS-HELP debt.
On 23 September 2021, the Applicant made a timely and successful post-census withdrawal application for another course SOCU1002 – Psychological Perspectives.[1]
[1] Exhibit R1, Respondent’s Hearing Tender Bundle, T2 Supplementary T-documents, ST4, Email from University to the Applicant, page 201.
On 21 January 2022, the Applicant applied to UniSA for remission of the HECS-HELP debt for COMM1071. This application was refused, and the Applicant sought an internal review.
On 2 May 2022, UniSA decided that it was not satisfied that the Applicant had made their application within the relevant timeframe, or that extenuating or exceptional circumstances arose that made such an application impracticable. This is the reviewable decision.
The Applicant has applied to the Tribunal for review of the reviewable decision. The issue for determination is whether the application period should be extended and, if so, whether special circumstances apply.
LEGISLATIVE CONTEXT AND ISSUES
Part 3.2 of the Higher Education Support Act 2003 (Cth) provides for who is entitled to receive HECS-HELP and how that assistance is paid. It is not in dispute that the Applicant was entitled to receive HECS-HELP assistance and that they indeed received that assistance.
Materially, Division 97 of the Act provides for the remission of HEC-HELP debts. It is not in dispute that the application for remission made on 21 January 2022 was made outside of the twelve-month period specified in section 36-22 of the Act, which ended on 20 December 2021.
The first issue for determination by the Tribunal is whether the application period should be waived, in accordance with subparagraph 36-20(1)(f)(ii) of the Act “on the ground that it would not be, or was not, possible for the application to be made before the end of that period”. Senior Member Morris observed in CNPG and Secretary, Department of Education [2022] AATA 4349, at [85], that the term “possible” means “reasonably possible in all the circumstances”. Member Reitano observed in Thomson and Secretary, Department of Education, Skills and Employment [2020] AATA 4672, at [32], that the Applicant is required to satisfy the Tribunal that “an application could not have been made because of some incapacity whether mental or physical, and not necessarily confined to medical conditions, to make the application at all”.
Subparagraph 36-20(1)(f)(ii) of the Act cannot be satisfied if the Tribunal finds that it would be, or was, possible for the application for remission to be made before the end of the application period. In that event, the Application cannot succeed.
If the Tribunal finds that subparagraph 36-20(1)(f)(ii) of the Act is satisfied, then the Tribunal must go on to consider whether “special circumstances” apply to the Applicant. For reasons that will become apparent, a consideration of special circumstances is irrelevant in this matter.
SHOULD THE APPLICATION PERIOD BE WAIVED?
In their reasons for the application, the Applicant claimed the reviewable decision was wrong because they believed they were “inhibited from being able to apply before the deadline” due to their mental health.[2] It is clear from the evidence that the Applicant currently suffers from several medical conditions. The Applicant detailed the impact of these conditions on them in their statement,[3] and in their oral evidence.
[2] Exhibit R1, Respondent’s Hearing Tender Bundle, T-Documents, T1, Application for Review of Decision, page 44.
[3] Exhibit R1, Respondent’s Hearing Bundle, A4, Applicant’s Outline of Argument, pages 5-14.
The substance of the Applicant’s evidence is that they have struggled with managing their Adjustment Disorder, Generalized Anxiety Disorder, and potential Attention-Deficit/Hyperactivity Disorder (ADHD). These mental health conditions have had a detrimental impact on the Applicant’s academic journey.
The transition to university was difficult for the Applicant, particularly with the impacts of the COVID-19 pandemic. The Applicant’s evidence is that their anxiety increased, they had difficulty focussing, and pronounced difficulty with time and responsibility management. The cumulative effect of this was that the Applicant faced a barrier to learning and their capacity to complete coursework and assessments declined. Under cross-examination, the Applicant raised concerns regarding the way in which COMM1071 was structured and taught. Indeed, some of these concerns are touched upon in the Applicant’s initial application of 21 January 2022.
The Applicant sought assistance for their conditions, including consulting a psychiatrist in 2018 and a psychologist. Most notably, the Applicant has consulted with their general practitioner Dr Hinchcliffe. The Applicant is not wealthy and has struggled to afford psychiatric therapy and treatment. However, despite their financial circumstances, the Applicant has been proactive in seeking assistance.
The Applicant seeks a favourable decision for several reasons. These include acknowledgement that their mental health and learning have impacted each other. The Applicant believes that this acknowledgement would assist to empower them with their further studies.
On 9 March 2023, Dr Hinchcliffe certified that the Applicant was being treated for Adjustment Disorder, Social Anxiety, and ADHD. Dr Hinchcliffe opined that these conditions impacted the Applicant’s “ability to complete tasks from 20/12/2020 to 6/2/2022”. The Tribunal accepts from this evidence, and the Applicant’s oral evidence, that during this period the Applicant experienced difficulty in consistently staying focussed, managing their anxiety, and organising their workload.
Furthermore, in a report dated 23 January 2023, Dr Hinchliffe opined that these conditions existed prior to 18 December 2020 but had not made their effect known until after that date.[4] The Tribunal accepts this evidence and is satisfied that the Applicant’s mental health and learning have impacted each other.
[4] Exhibit R1, Respondent’s Hearing Tender Bundle, A2, Letter of Dr Hinchcliffe, page 3.
On 5 May 2022, psychologist Ms Madeline Rowell opined that the Applicant met the diagnostic criteria for Gender Dysphoria and Social Anxiety Disorder (Social Phobia). The Applicant also presented with symptoms consistent with Persistent Depressive Disorder (Dysthymia). Ms Rowell’s evidence is that the Applicant’s conditions impacted their “ability to attend University and maintain their grades as well as adhering to their job seeking requirements”.[5] In an earlier report of 31 March 2022, Ms Rowell wrote that the Applicant’s anxiety had been debilitating.[6]
[5] Exhibit R1, Respondent’s Hearing Tender Bundle, T-Documents, T1, Application for Review of Decision, page 10.
[6] Exhibit R1, Respondent’s Hearing Tender Bundle, A1, Letter from Madeline Rowell, pages 1-2.
The most significant difficulty for the Applicant’s case is that on 23 September 2021, the Applicant made a timely and successful post-census withdrawal application for SOCU1002 – Psychological Perspectives. The Applicant’s fee for that course was remitted.[7] Given that the Applicant had the capacity on 23 September 2021 to make a post-census withdrawal application for another course, the Tribunal is not satisfied that it was not possible for the current application to be made from at least that time until the end of the application period of 20 December 2021.
[7] Exhibit R1, Respondent’s Hearing Tender Bundle, T2 Supplementary T-documents, ST4, Email from University to the Applicant, page 201.
CONCLUSION
For these reasons the application period cannot be waived, the application cannot succeed, and the decision under review must be affirmed.
The requirements of subparagraph 36-20(1)(f)(ii) of the Act having not been satisfied, specific consideration of any special circumstances under of paragraph 36-20(1)(d) of the Act is irrelevant. Accordingly, the Tribunal must affirm the Reviewable Decision of the Respondent dated 2 May 2022.
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the Reviewable Decisions of the Respondent dated 2 May 2022.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.............................[Sgnd]..............................
Associate
Date of Decision: 17 January 2024 Date of Hearing: 29 November 2023
Representation for the Applicant: Self-represented
Solicitor for the Respondent: Ms Kristina Mihalic
HWL Ebsworth LawyersANNEXURE A – EXHIBIT REGISTER
23. EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
R1
Respondent’s Hearing Tender Bundle
R
N/A
15/11/2023
29/11/2023
R2
Respondent’s List of Authorities
R
N/A
27/11/2023
29/11/2023
0
2
0