Zabaneh and Secretary, Department of Education and Training
[2016] AATA 569
•3 August 2016
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 (3 August 2016)
Division: GENERAL DIVISION
File Number: 2015/4584
Re: JOSEPH ZABANEH
APPLICANT
And:SECRETARY, DEPARTMENT OF EDUCATION AND TRAINING
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
A G Cameron, MemberDate 3 August 2016
Place Melbourne
The Tribunal decides:
to affirm the decision of the respondent dated 24 June 2015.
………[sgd]…..…………….
Deputy President
CATCHWORDS – FEE-HELP ASSISTANCE – debt – whether possible to have made application for re-crediting of FEE-HELP balance in application period - made in application period – whether special circumstances – decision affirmed.
CASES
Brown v Secretary of Education and Training [2015] AATA 518
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194; 174 ALR 585
Confidential v Secretary, Department of Education [2013] AATA 707; (2013) 137 ALD 451
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66ALR 299
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321
Rix v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 742; (2012) 132 ALD 578
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492LEGISLATION
Higher Education Support Act 2003 (Cth); ss 101-1, 104-15, 104-20, 104-25, 104-25, 104-27, 104-30, 104-42, 107-1, 107-5, 110-1 and 137-10
Administration Guidelines 2012
Student Learning Entitlement Guidelines
REASONS FOR DECISION
Mr Joseph Zabaneh seeks a review of a decision by Open Universities Australia (OUA) on 24 June 2015 refusing to re-credit his FEE-HELP Balance. In making that decision OUA acted on behalf of the Secretary of the Department of Education and Training (Secretary). FEE-HELP is a loan scheme that provides financial assistance to students to pay for tuition fees for units of study that are not supported by the Commonwealth: s 101-1 of the Higher Education Support Act 2003 (Cth) (Act). We have decided to affirm the decision. That means that Mr Zabaneh owes a FEE-HELP debt to the Commonwealth.
THE ISSUES
The issue in this case is whether OUA must, on the Secretary’s behalf, re-credit Mr Zabaneh’s FEE-HELP balance with an amount equal to the amount of FEE-HELP assistance that he received for four units of study. In resolving that issue there are two subsidiary issues to be decided:
(1)As Mr Zabaneh did not apply to OUA for re-crediting of his FEE-HELP balance until after the application period had expired, was it possible for him to have made his application before the end of that period?
(2)Are there special circumstances that apply to Mr Zabaneh?
HOW FEE-HELP WORKS
FEE-HELP is a loan scheme available to students who meet certain requirements. Those requirements include his or her being enrolled in a unit on or before census date and remaining so enrolled after that date where a study unit is undertaken as part of a course of study offered by a higher education provider or access to which is provided by OUA.[1] FEE-HELP assistance is assessed in respect of each study unit and is the difference between the student’s tuition fees for that unit and the sum of any up-front payments made in relation to that unit.[2] Where a student is entitled to an amount of FEE-HELP assistance for a unit of study offered by OUA, the Commonwealth must, as a benefit to the student, lend him or her the amount of the FEE-HELP assistance. The Commonwealth must also pay the amount lent not to the student but to OUA in discharge of that student’s liability to pay his or her tuition fees for that subject.[3]
[1] Act; s 104-1 If a student is enrolled before that date but not on that date, he or she is not entitled to FEE-HELP assistance.
[2] Act; s 107-1 Up-front payments do not include an amount of FEE-HELP assistance: Act; s 107-5.
[3] Act; s 110-1(2).
The assistance that can be obtained under FEE-HELP is limited to $80,000 (as indexed under Part 5-6) in respect of all courses other than medicine, dentistry and veterinary science.[4] That amount is the “FEE-HELP limit”. A person’s FEE-HELP balance at a particular time is the amount by which his or her FEE-HELP limit exceeds all the amounts of FEE-HELP assistance and VET FEE-HELP assistance that have previously been payable to the person less any amounts previously re-credited under Subdivision 104-B of Part 3-3 of Chapter 3 or, in the case of VET FEE-HELP assistance, under Subdivision 7-B of Schedule 1A.[5] On the facts in this case as we find them to be later in these reasons, Mr Zabaneh’s FEE-HELP limit is $86,422 as at 1 January 2011. Given that the amount of FEE-HELP assistance he has received is $750 for each of four subjects, his FEE-HELP balance is $83,422. The issue in this case is whether any amounts of FEE-HELP assistance should be re-credited. If they, or some of them, should be re-credited, his FEE-HELP balance would increase by the same amount.
[4] Act; s 104-20.
[5] Act; s 104-15 Mr Zabaneh was not in receipt of VET FEE-HELP assistance as OUA was a higher education provider.
A person incurs a debt to the Commonwealth if, under s 110-1, the Commonwealth makes a loan to a person and uses the amount lent to make a payment in discharge of the person’s liability to pay his or her tuition fees for a unit of study.[6] The amount of the FEE-HELP debt is an amount equal to 125% of the loan if it relates to FEE-HELP assistance for a unit of study that forms part of an undergraduate course of study.[7] An “undergraduate course of study” means “… a *course of study that is neither an *enabling course nor a *postgraduate course of study.”[8] There is no dispute in this case that the course of study in which Mr Zabaneh enrolled was an undergraduate course of study.
[6] Act; s 137(1).
[7] Act; s 137-10(2)(a). In any other case, it is the amount of the loan: Act; s 137-10(2)(b).
[8] Act; s 1-10 and Schedule 1, cl 1.
A FEE-HELP debt is taken to have been incurred by a person immediately after the census date for the particular unit, whether or not the Commonwealth has made the payment in respect of the person’s tuition fee for the unit.[9] A person’s FEE-HELP debt in relation to a unit of study is taken to be remitted if his or her FEE-HELP balance is re-credited under ss 104-25, 104-27 or 104-42 i.e. under Subdivision 104-B of Part 3-3 of Chapter 3 of the Act. Mr Zabaneh seeks re-crediting of those amounts. We will return to the re-crediting provisions later in these reasons.
[9] Act; s 137-10(3).
RELEVANT FACTS
On the basis of a copy of an Online Course Enquiry date 1 August 2011, we find that Mr Zabaneh submitted the enquiry to OUA. He gave his name, telephone number, country of residence and email address and said:
“I am interested in the Bachelor of Arts (Security Terrorism and Counter-terrorism) course offered through Open Universities Australia. Please contact me with more information about this or other related courses.”[10]
[10] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T documents); T5 at 32 and see also Affidavit of Duncan Chater affirmed on 7 March 2016 at [11] and Exhibit DC1.
On the basis of the evidence of Mr Duncan Chater, who is a Student Equity Officer (SEO) at OUA, we find that it is OUA’s policy to record all conversations between student advisors and students.[11] Mr Earl Toling is a student advisor and we find that a conversation was recorded between him and Mr Zabaneh on 3 August 2011.[12] The audio file containing that conversation was saved to a disk and sent to the Secretary’s solicitors in this matter. They arranged for a transcription to be made of the content.[13]
[11] Affidavit of Duncan Chater affirmed on 7 March 2016 at [13].
[12] Affidavit of Duncan Chater affirmed on 7 March 2016 at [15] and Exhibit DC4 and see also T documents; T6 at 33-34.
[13] Affidavit of Phoebe Richards affirmed on 7 March 2016.
Our reading of the conversation between Mr Toling and Mr Zabaneh leads us to conclude that Mr Toling “walked him through” the making of the application. Before that, they had talked about employment opportunities that might be available to Mr Zabaneh if he were to complete a Bachelor Degree of Security, Terrorism and Counter Terrorism. Mr Toling expressed the view that Mr Zabaneh would be better studying an under-graduate degree as his last study had taken place in 1986. As Mr Zabaneh said that he wanted to get into his study as soon as possible, Mr Toling said that he would plan his enrolment for him. Mr Zabaneh confirmed that he was in front of a computer. After Mr Toling entered his details and allocated him a student number, he directed Mr Zabaneh to the OUA’s web-site and told him to complete the registration. He then directed him to “… click make a payment for me.” Mr Zabaneh acknowledged that, when he did so, the units that Mr Toling recommended that he start with showed on the screen. He thought that they would introduce Mr Zabaneh into university learning. The conversation then continued:
“ET
So if you see the 4 units on the bottom right hand side it says apply for fee help
JZ
Okay
ET
If you apply for fee help put in my the government will pay your tuition
JZ
Okay
ET
Until you start earning a certain amount the Tax Office will organise repayments back to complete the student loan
JZ
Oh really even if I’m working
ET
Yeah absolutely
JZ
Okay so I don’t have to pay anything
ET
No, not at all
JZ
Oh that’s great
ET
So click on the bottom right hand side apply for fee help
JZ
Apply for fee help yeah, so even if I’m working and everything I won’t into trouble in any way
ET
Not at all, not at all, when you start they certain amount its about 4% out of your taxable income to pay back the student loan. When you want to actually pay it back alright you get a discount off the actual total amount
JZ
So I cannot claim for last year I can claim for next year
ET
Next year yes that’s right
JZ
Because its after 30th
ET
Absolutely, absolutely
JZ
Okay so option payment
ET
Apply for fee help on the bottom right did you click that? What page are you on now
JZ
I said Yes I wish to receive electronic
ET
Yes I wish to receive an electronic and then click online fee help form
JZ
Yeah
ET
It should come up with what page does it come up with?
JZ
Australian Government Department of Education
ET
Yeah go next
JZ
Next yeah
ET
And what page comes up?
JZ
My address
ET
Yeah put your student ID in and it’s that number I gave you before
JZ
My student ID
ET
Yeah
JZ
Oh yeah in the box …
…
…”[14]
[14] Affidavit of Phoebe Richards affirmed on 7 March 2016 at PR3: 9-10.
Mr David Lawrence has been the IT Business Partner at OUA since 2014 and one of its employees for 20 years. Until his promotion in 2014, he was the head of the Business Operations Team at OUA and previously its Development Manager responsible for managing the testing and support teams of OUA’s IT systems. On the basis of his evidence and consistently with the transcript of the conversation between Mr Zabaneh and Mr Toling, we find that Mr Zabaneh completed and submitted his enrolment online on 3 August 2011. Part of the enrolment required Mr Zabaneh to consider how he would pay OUA for the units he had selected. A screen would have shown him the unpaid units and directed him to a further screen to pay them. That further screen gave him the choice of paying for them or doing so through FEE-HELP. A further screen explained that, in order to apply for FEE-HELP, he had to complete a Request for FEE-HELP Assistance form. It also advised that, before completing the form, “… you must read the FEE-HELP Information Booklet”. A link named “START ONLINE FEE-HELP APPLICATION” appeared at the bottom of the screen.[15] Mr Zabaneh selected FEE-HELP on 3 August 2011.
[15] Affidavit of David Geoffrey Lawrence affirmed on 7 March 2016 at [10]-[20] and Exhibits DL2-DL4 and see also transcript of conversation between Mr Zabaneh and Mr Toling on 3 August 2011: Affidavit of Phoebe Richards affirmed on 7 March 2016 at PR3.
Following the conversation, Mr Toling wrote an email to Mr Zabaneh saying, in part:
“… As we discussed earlier today, your enrolment with OUA is now almost complete. You will be able to finalise your enrolment in a few short steps by following the instructions in the attached document. I’ve also included some information and tips you may find useful in preparing for your upcoming studies. Study Period 3 commences on Monday the 29th of August. The attachments are titled:
1. Smarthinking
2. Study Materials
3. 2011 FEE-Help Booklet… ”[16]
[16] T documents; T7 at 35 and see also Affidavit of Duncan Chater sworn on 7 March 2016 at [12].
The 2011 FEE-Help Booklet, which Mr Toling attached to his email, was prepared by the then Department of Education, Employment and Workplace Relations (DEEWR). The first page after the front cover of the FEE-HELP Booklet states, in part:
“YOU MUST READ THIS BOOKLET BEFORE YOU
SIGN AND SUBMIT ONE OF THE FORMS BELOWTo request FEE-HELP assistance you are required to complete one of the Request for FEE-HELP assistance forms below.
When you sign the form, you declare that you have read this booklet and that your are aware of your obligations under FEE-HELP.”
Pages i to vii of the FEE-HELP Booklet, which appear before its Table of Contents, summarise the payment options for fee paying students, dates that they must keep in mind and how the FEE-HELP scheme works. At page ii is an outline of the scheme:
“PAYMENT OPTIONS FOR FEE PAYING STUDENTS
Fee paying students can either:
·Pay some or all of their tuition fees up-front; and/or
·Submit a Request for FEE-HELP assistance form (by the census date of the first unit(s) for which they want to access FEE-HELP) to obtain a loan for some or all of their tuition fees through FEE-HELP (see Chapter 2 to determine whether you are eligible for FEE-HELP assistance). The Australian Government will pay the amount of the loan to the higher education provider on the student’s behalf.”
Under the heading “Important Dates” is the following information:
What is a census date and why it is so important, particularly for students accessing FEE-HELP?
CENSUS DATE
The census date of a unit is the last day that a student can submit their Request for FEE-HELP assistance form to defer their tuition fees through FEE-HELP.
In accordance with HESA [Higher Education Support Act 2003], census dates cannot be set any earlier than 20% of the way through the period for which a unit is undertaken (se section 6.6 for more information).
Higher education providers set their own census dates so dates differ across providers.
Census date deadlines cannot be extended.
You must submit your Request for FEE-HELP assistance form by the end of the census date (of the first unit(s) for which you want to use FEE-HELP) or you will not be able to defer your tuition fees through FEE-HELP – you will have to pay your tuition fees up-front instead.
You cannot submit your Request for FEE-HELP assistance form after the census date – you will have to wait until the next semester to apply.
What is an ‘administrative date’ and how does it affect the census date?
ADMINISTRATIVE DATE
Some providers set an earlier ‘administrative date’ (that is earlier than the census date) for students to either submit their Request for FEE-HELP assistance form or pay their tuition fees up-front.
It is your responsibility to check and know these dates.If your provider has set an earlier ‘administrative date’ (that is earlier than the census date) and you do not meet this earlier ‘administrative date’, your provider may charge you a late fee for that unit(s) of study.
Requesting
FEE-HELP assistanceSubmit your Request for FEE-HELP assistance form by the census date (or, if applicable, the earlier ‘administrative date’ set by your provider) of the first unit(s) of study that you want to access a FEE-HELP loan for your tuition fees (see section 6.1 for more details).
If you do not submit your Request for FEE-HELP assistance form by the census date, you will not be able to defer your tuition fees through FEE-HELP – you will have to pay your tuition fees up-front to your provider.
What happens if I realise there is an error on my Request for FEE-HELP assistance form?
You have six weeks from the census date of the unit(s) of study that you are enrolled in to correct any errors on your Request for FEE-HELP assistance form to establish entitlement to FEE-HELP assistance.
After the six weeks has elapsed, it is no longer possible to correct information in order to establish entitlement to FEE-HELP.
An error does not include a person who becomes an Australian citizen after the census date of a unit(s) of study that they are enrolled in. You must be an Australian citizen on or before the census date of unit(s) in order to apply for FEE-HELP.
Withdrawing from FEE-HELP assistance
If you have submitted a Request for FEE-HELP assistance form but change your mind about studying, or change your mind about accessing a FEE-HELP loan, by the end of the census date, you must:
· cancel your Request for FEE-HELP assistance form; or
· withdraw your enrolment in that unit(s) of study;
Or you will (except under special circumstances) incur a FEE-HELP debt for that unit(s) of study (see sections 6.7 and 6.9 for more details).”[17]
[17] T documents; T7 at 44-45.
Section 6.7 of the Booklet advises a student what to do if changing a course of study or transferring to another higher education provider. Section 6.8, which appears on the same page, is headed “When do I incur a debt?” It begins by advising that a student incurs a FEE-HELP debt immediately after the census date for each unit of study for which he or she has received FEE-HELP assistance. If a student has requested a FEE-HELP loan but has a change of mind about studying, he or she must either cancel the Request for FEE-HELP assistance form he or she has submitted or withdraw from enrolment in the study. In either case, the student must take one step or the other on or before the census date for the particular unit or units of study. Students are advised to follow their particular higher education provider’s withdrawal policy. Section 6.9 has a particular note for students of OUA and it appears in its own paragraph in bold text:
“Note that Open Universities Australia students must cancel their Request for FEE-HELP assistance Open Universities Australia form in writing to Open Universities Australia.”[18]
[18] Booklet at 20.
Section 7 of the Booklet is concerned specifically with OUA students.
“If you are an Open Universities Australia student and you wish to withdraw from a unit, you must either send a signed, written notification to Open Universities Australia, or log on to the Open Universities Australia website with your Open Universities Australia ID and passwords to request a withdrawal online.
Applications for withdrawal without incurring a FEE-HELP debt must be received by Open Universities Australia on or before the census date of the study period which you are enrolled.
…”[19]
Details are then given of how a student may submit that written withdrawal online, by facsimile or by post.
[19] FEE-HELP Booklet at 24.
Immediately below that advice, is advice in section 7.2 regarding what happens when a student withdraws before the census date. The advice is that, if correctly withdrawn on or before the census date, no FEE-HELP debt is incurred for that date. Section 7.3 of the Booklet then advises:
“What happens if I withdraw after the census date?
If you have not paid your tuition fees and you have requested FEE-HELP assistance, and you withdraw after the census date, you will have a debt to the Australian Government that you are legally required to repay.
If, after the census date special circumstances occur and you are unable to continue your studies, you can apply to your provider to have your FEE-HELP balance re-credited and your FEE-HELP debt removed for that unit(s). You should note that there are time limits for applying (see section 7.4). You should also note that HESA [Higher Education Support Act 2003] prescribes strict requirements which you or your circumstances must meet before your provider can re-credit your FEE-HELP balance (see section 7.4).”
Section 7.4 sets out a comprehensive guide to how to have a FEE-HELP balance re-credited and a debt removed in special circumstances.
On 4 August 2011, OUA sent Mr Zabaneh a letter confirming his enrolment in the following subjects through OUA:
“(a) PLT120 – Introduction to Global Politics (semester 3);
(b) PTR100 – Perspectives on Security and Terrorism (semester 3);
(c) ISU111 – Wellbeing (semester 4); and
(d) PAC11 – Globalisation: The Asia Pacific and Australia (semester 4).”
The third semester commenced on 29 August 2011 and concluded on 27 November 2011, while the fourth semester commenced on 28 November 2011 and ended on 28 February 2012. Critically, the census date for the third semester was 19 September 2011 and that for the fourth semester was 19 December 2011. This was set out in a Commonwealth Assistance Notice (CAN) appearing on Mr Zabaneh’s Student Centre on or after 10 October 2011.[20] A “Student Centre” is a web-based facility through which a student may gain access, plan, pay for and manage their enrolment in units offered by the OUA. They may also use it to withdraw from subjects and to get statements of results or payments.[21] Under the heading of “Changes to Study Program”, the notice on Mr Zabaneh’s Student Centre explained that:
“Open Universities Australia’s withdrawal policy allows you to change your study program (by replacing units or withdrawing) without penalty before the Close of Enrolment of each Study Period.
Should you wish to withdraw from units after the Close of Enrolment but before the Census Date, you may still do so and receive a remission of FEE-HELP debt, but you will incur a penalty unless you can prove special circumstances (e.g. medical or family reasons). How to do this, with the level of penalties, is set out on the OUA website and in the OUA Handbook.
Should you wish to withdraw after the Census Date your FEE-FELP [sic] debt will not be remitted unless you can provide special circumstances. Details about how to do this are also on the website and in the Handbook.”[22]
[20] Affidavit of David Geoffrey Lawrence affirmed on 7 March 2016 at [27] and DL6.
[21] Affidavit of David Geoffrey Lawrence affirmed on 7 March 2016 at [14]-[16].
[22] Affidavit of David Geoffrey Lawrence affirmed on 7 March 2016 at DL6.
Another CAN addressed to Mr Zabaneh was also dated 10 October 2011. It confirmed his liability for the two units in which he had enrolled for Semester 3 of 2011 and for which the census date was 19 September 2011. His total FEE-HELP debt was shown as $1,500 for the two subjects.[23] A similarly worded CAN was dated 9 January 2012 and advised him that this FEE-HELP debt in relation to the two subjects in which he was enrolled on or after the census date of 19 December 2011 was $1,500.[24]
[23] T documents; T10 at 116.
[24] T documents; T10 at 117.
As appears from Mr Zabaneh’s Academic Record, he failed each of the four units.[25] Mr Zabaneh conceded, during the course of the hearing, that he had not participated in the courses in any way and, in particular, had not submitted any material for assessment.
[25] Affidavit of David Geoffrey Lawrence affirmed on 7 March 2016 at DL11.
RE-CREDITING A PERSON’S FEE-HELP BALANCE
There are two avenues provided in Subdivision 104B of Part 3-3 of Chapter 3 of the Act for re-crediting a person’s FEE-HELP balance. Only one is relevant for the other, which is set out in s 104-27, relates to situations in which a person does not have a Tax File Number (TFN). A person who does not have a TFN has no entitlement to FEE-HELP assistance.[26]
[26] Act; s 193-10.
Section 104-25(1A) of the Act provides that s 104-25 does not apply if s 104-42 applies to re-credit a person’s FEE-HELP balance. Section 104-25(2) applies to courses provided through the OUA and states:
“*Open Universities Australia 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 has received for a unit of study if:
(a)access to the unit was 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)Open Universities Australia is satisfied that special circumstances apply to the person (see section 104-30); and
(d)the person applies in writing to Open Universities Australia 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)Open Universities Australia 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.
Note: A FEE-HELP debt relating to a unit of study will be remitted if the FEE-HELP balance in relation to the unit is re-credited: see section 137-10.”
A. Application period
The “application period” is the subject of s 104-35. When a person has not, as Mr Zabaneh has not, withdrawn from a unit of study, “… the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.”[27] The last of the four units for which Mr Zabaneh enrolled was to be taught in Semester 4 of 2011. That semester ended on 28 February 2012. Mr Zabaneh applied to OUA on 23 June 2015. That is well outside the 12 month period following the period in which he was to have undertaken the last two units of study.
[27] Act; s 104-35(2).
In Brown v Secretary of Education and Training,[28] the Tribunal held in relation to the meaning word “possible” at [35]:
“… The word possible is defined in The Shorter Oxford English Dictionary in the following way: 1. That may be (i.e. is capable of being); that may or can exist, be done, or happen; that is in one’s power, that one can do, exert, use etc. It should be immediately apparent that use of the word possible gives rise to a broad range of circumstances under which some action may be taken. For something not to be possible would require a very serious constraint to be placed on a person’s ability to act, in this case, by completing an application form and sending that form by email, fax or post to MIBT.”[29] (emphasis added)
[28] [2015] AATA 518; Senior Members Fice and Cremean.
[29] [2015] AATA 518 at [35].
In his application for re-crediting of his FEE-HELP balance dated 23 June 2015, Mr Zabaneh wrote:
“THE FORM HAS BEEN FILLED OUT AND SUBMITTED
I NEVER ATTENDING ANYTHING
I WAS NOT AWARE OF ANYTHING
I DID NOT CONTACT ANY UNI
ANY BODY
ANYTIME REGARDING THE COURSES
J. zaBANEH”[30]
[30] T documents; T13 at 119.
In another email on the same day, Mr Zabaneh explained that:
“NOTHING WAS EXPLAINED TO ME HOW TO ENROL AND HOW TO CANCEL, NOTHING WAS DONE PROPERLY, ON TOP I GOT SICK AND I WAS WORKING 6 DAYS AWEK [sic] TILL LAST SEPTEMBER WAS REDUCED TO 5 DAYS.
I AM UNABLE TO PAY ANYTHING OR ANY MONEY, I WAS NOT ENROLLED PROPERLY OR EVENT EXPLAINED TO ME.
IF YOU REQUIRE MEDICAL REPORT I CAN GET YOU ONE FROM MY DOCTOR.
…”[31]
[31] T documents; T15 at 123.
In an email to the Tribunal on 2 July 2015, Mr Zabaneh wrote:
“1. I was not aware of any cancellation time required to cancel.
2.All information given to be (sic) was fast and did not explain to me anything.
3.I have never enrolled in anything like that before.
4.No one explained to me about money, fee or anything.
5.I was told its free is all I know.”
In an email dated 18 August 2015 and addressed to OUA, Mr Zabaneh stated:
“1. I have been sick since early 2010 with dizziness and headaches, fatigues and lack of sleep.
2.Diagnosed at the Melbourne central clinic in Melbourne…
3.Dr. David Philips at the time was my doctor.
4.I was told to take care of my health due to a stated hypertension.
5.My mother passed away took its toll on me, affected me as a person and my health.
6.a year after my father passed away also the same thing took its toll on me, his death…”
In a further letter dated 22 March 2016 and addressed to the Tribunal, Mr Zabaneh wrote, in part:
“…I have to say the following in my own language as I am not a lawyer:
1-I am a hard working labourer.
2-I am a full time worker.
3-I am sick with several diseases blood pressure and diabetes.
4-I have a high mortgage.
5-I am a family man with low income.
The university has failed that time to produce sending me obligations regarding the attendance and the rules to attend and when to cancel and so forth.
The university staff did not explain anything in writing regarding the threshold of the fees to pay.
The university did not send me any material regarding HECS fees or anything as I have not studied in Australia before and I have no idea about any fees.
It is not my fault to have not to attend my studies due to my illness, I have produced 3 doctors certificates and that is not enough.
…
… [T]he simple fact is I did not attend to any course as I was sick and unable to withstand the pressure of work and day to day life and family as it was taking its toll on me.
…”
Mr Zabaneh submitted a number of letters from various medical practitioners. He had attended Dr Hany Sharobem’s clinic since November 2012. Dr Hin Chiu wrote that Mr Zabaneh had seen him regularly since 2013. Dr David Phillips had seen Mr Zabaneh specifically between September 2011 and 26 February 2012 and Mr Zabaneh had attended Mr Karim Saleh’s practice for physiotherapy. On the basis of those letters, we find that Mr Zabaneh suffers from diabetes mellitus, hypertension, asthma and lumbar dysfunction and has done so since 2009 if not before. He has also been sick with dizziness and headaches.
Mr Zabaneh’s medical practitioners do not go so far as to say that he was incapacitated to such an extent that he could not write a letter or an email seeking re-crediting of his FEE-HELP balance. Certainly, he is suffering from a number of conditions but, on the basis of the evidence from his medical practitioners, we find that his conditions are being treated. They are, as he says, part of his life but, on the evidence that we have, not such that it would not have been possible for him to make his application, at least in respect of the last two subjects, before 28 February 2013 or the first two subjects before 27 November 2012.
Our conclusion means that Mr Zabaneh does not meet the criterion in s 104-25(2)(e). As the five criteria in that section are cumulative, that means that OUA is not required to re-credit his FEE-HELP balance with the amount of FEE-HELP assistance he has received.
B. Special circumstances
Section 104-30 of the Act sets out when special circumstances apply. Section 104-30(3) is relevant to the situation of OUA when it provides that:
“For the purposes of paragraph 104-25(2)(c), special circumstances apply to a 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.”
Guidelines
On behalf of the Secretary, Mr Bird submitted that we should have regard to the FEE-HELP Guidelines in considering whether there are special circumstances in this case. Section 238-10 of the Act provides that the Minister may, by legislative instrument, make Guidelines:
“… providing for matters:
(a)required or permitted by the corresponding Chapter, Part or section specified in the third column of the table to be provided; or
(b)necessary or convenient to be provided in order to carry out or give effect to that Chapter, Part or section.”
Item 4 of the table specified FEE-HELP Guidelines for the purposes of Part 3-3. Section 101-5 of Part 3.3 provides that:
“*FEE-HELP assistance is also dealt with in the FEE-HELP Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note: The FEE-HELP Guidelines are made by the Minister under section 238-10.”
The particular provisions of Part 3.3, which require or permit Guidelines to be made are:
No.
Section
Heading
1.
104-3
“Failure by Open Universities Australia to comply with FEE-HELP Guidelines etc”
2.
104-4
“Failure by Open Universities Australia to set tuition fees and census date”
3.
104-30
“Special circumstances”
4.
104-55
“Meaning of assessing body”
5.
104-60
“Meaning of listed professional occupations”
6.
104-65
“Occupation includes part of an occupation”
7.
110-5
“Effect of FEE-HELP balance being re-credited”
The reference to Guidelines in s 104-30 is made in s 104-30(2) but we will set out s 104-30(1) as well in order to set the context. As currently written, s 104-30 provides that:
“(1) For the purposes of paragraph 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.
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 Guidelines referred to in s 104-30(2) are Administration Guidelines. Item 1 of the table in s 238-10 of the Act permits Administration Guidelines to be made under, among other provisions, s 36-21. Section 36-21 relates to s 36-20 which requires a higher education provider to pay to a student an amount of any student contribution amount he or she has made and to pay the Commonwealth the amount of any HECS-HELP assistance to which the person was entitled. Section 36-20 only requires the amounts to be paid to the student and to the Commonwealth if, among other criteria, the provider is satisfied that special circumstances apply to the person.[32] Special circumstances:
[32] Act; s 36-20(1)(d).
“…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) The Administration Guidelines 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.
Note: Guidelines made for the purposes of this subsection also have effect for the purposes of subsection 104-30(2) (re-crediting a person’s FEE-HELP balance).”
We will not set out the relevant passages at cl 3 of the Administration Guidelines, for we have come to the view that the Administration Guidelines are not relevant. As a matter of interpretation of the Act, Parliament has specifically required higher education providers to have regard to them and excluded OUA. Application of the maxim of expressio unius est exclusion alterius leads to the same conclusion. That is to say, an express reference to one matter indicates that other matters are excluded. In reaching that conclusion, we are well aware of the need to be careful in applying maxims of statutory interpretation of this sort.[33] On this occasion, however, the maxim accords with the clear intention expressed by Parliament. Section 104-30(3) of the Act, which applies to OUA, makes no mention of the Administration Guidelines. This should be contrasted with s 104-30(2), which applies to higher education providers and which does require regard to be had to the Administration Guidelines. We agree with the reasoning of Senior Member Fice in Confidential v Secretary, Department of Education[34] that the Act draws a clear distinction between higher education providers and the OUA.
[33] Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94 per Stephen, Mason, Aickin, Wilson and Brennan JJ.
[34] [2013] AATA 707; (2013) 137 ALD 451 at [31]-[36]; 457-459.
Mr Bird has submitted that it is the Secretary’s policy that the Administration Guidelines be applied when considering special circumstances where the provider is OUA. We are mindful of the desirability of applying policy that is consistent with the enactment to which it relates. A submission is not evidence, though. In the absence of evidence, we do not think that we should apply the Administration Guidelines in circumstances in which Parliament clearly made a decision not to require them to be followed. We note that our view is consistent with the conclusion reached by Senior Member Britton in Rix v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education.[35] It is not consistent with that reached by Senior Member Walsh and Dr Kendall, Member, as he then was but the reason lies in their having an evidentiary basis satisfying them that they could find that the Secretary’s Department had instructed OUA to apply the Administration Guidelines.[36] We do not have that evidentiary basis.
[35] [2012] AATA 742; (2012) 132 ALD 578 at [26]; 582 The case concerned a course of study at a higher education provider and not through OUA. We do not express a view on the conclusion reached in that case that regard must be had to the Student Learning Entitlement Guidelines (SLE Guidelines), rather than to the Administration Guidelines 2012, when considering whether special circumstances apply to a person. Resolution of that issue will depend on a consideration of issues including the interaction of the amendments to ss 36-20 and 36-21 and 104-30(2) by the Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (Cth) (Amending Act) and the Transitional Arrangements in cl (v) to the Administration Guidelines 2012. As we have concluded that the Guidelines apply to decisions made by higher education providers and not to those by the OUA, we will not explore those issues.
[36] Re Adamson and Secretary, Department of Education [2015] AATA 141.
Our conclusion does not mean that we may make a decision under s 104-25 unfettered. When a power is discretionary, as is the power under s 104-25(2)(c) of the Act, it is necessary to determine the scope of the discretion given to a decision-maker.[37] Its limits may be determined by reference to “... the subject matter, scope and purpose of the statute ...”[38] but, in this context are determined by reference to the criteria specified in s 104-30(3). That provision has three criteria, all of which must be met before we may find that special circumstances apply to Mr Zabaneh.
[37] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194; 174 ALR 585 at 205; 591 and see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J and 602; 80.
[38] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309 per Mason J. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321 at 49; 325 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505.
Having regard to the transcript of the telephone conversation between Mr Toling and Mr Zabaneh, we find that Mr Toling did refer to the fact that FEE-HELP assistance is a loan and that Mr Zabaneh would have to pay it back through the taxation system when his income reached a certain level. At the same time, we find that Mr Zabaneh did not understand what he was being told. That is quite clear from the transcript. He was focused on finding a new avenue of employment. Mr Toling helped him through the online enrolment but did not emphasise that he should read the FEE-HELP Booklet or ask him if he had.
The fact that Mr Toling did not do so does not, in our view, absolve Mr Zabaneh from his responsibility to have read it. Mr Toling sent him the FEE-HELP Booklet on 3 August 2011 following their conversation. That expanded upon what he had said about FEE-HELP assistance during their conversation. Even if Mr Zabaneh did not understand that FEE-HELP was a repayable loan scheme, it was made very clear in that booklet. It was also stated very clearly in that booklet that a person could withdraw from a unit of study without penalty and so without incurring any liability to repay any loan if he or she were to do so by the Census Date applicable to that unit. Mr Zabaneh was, we find, given proper notice of what he was agreeing to do. He was in a position to know what he had agreed to and what he needed to do in order to withdraw from the units of study in which he had enrolled and to avoid a FEE-HELP debt. The circumstances were not beyond his control as required by s 104-30(3)(a) of the Act.
The fact that he did not undertake the study is not a relevant consideration for he incurred a FEE-HELP debt when, as a result of his applying for FEE-HELP assistance, the Commonwealth made a loan to him and used the amount lent to make a payment in discharge of his liability to OUA to pay his tuition fees for each unit of study in which he enrolled. His enrolling was within his control. As his medical practitioners have written and as Mr Zabaneh has said, he has long-standing health issues. He suffered from them when enrolled in the units of study and before the relevant Census Dates and continues to suffer from them. They may be beyond his control but they cannot be said not to have made their full impact until after the relevant Census Dates. Therefore, we are not satisfied that Mr Zabaneh comes within s 104-30(3)(b).
As unfortunate as it is that Mr Zabaneh does not enjoy good health and that his parents have died, we are not satisfied that his circumstances were such that it was impracticable for him to complete the requirements of each unit within the relevant semester as required by s 104-30(c). “Impracticable” means “… not able to be done”.[39] On the evidence, it might have been difficult for him to do so but the circumstances on which Mr Zabaneh relies were not such that completion of the requirements of the four units of study was not able to be done.
[39] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers.
In view of our findings, we are not satisfied that special circumstances apply to Mr Zabaneh as required by s 104-25(2)(c).
DECISION
As we have found that Mr Zabaneh does not meet the requirements of s 104-25(2) of the Act, we find that he is not entitled to have his FEE-HELP balance re-credited. Therefore, we affirm the decision of OUA dated 24 June 2015.
I certify that the forty seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie and AG Cameron, Member,
Signed: ……….......................[sgd]....................................
Associate
Date of Hearing 22 April 2016
Date of Decision 3 August 2016
ApplicantSelf-represented
Solicitor for Respondent Mr John Bird
Clayton Utz
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