ZBNL and Secretary, Department of Education and Training

[2017] AATA 1007

ZBNL and Secretary, Department of Education and Training [2017] AATA 1007 (30 June 2017)

Division:GENERAL DIVISION

File Number:           2016/2436

Re:ZBNL

APPLICANT

Secretary, Department of Education and TrainingAnd  

RESPONDENT

DECISION

Tribunal:Senior Member R W Dunne

Date:30 June 2017

Place:Adelaide

The Tribunal affirms the decision under review.

.....................[Sgd]...................................................

Senior Member R W Dunne

CATCHWORDS

HIGHER EDUCATION – Higher Education Contribution Scheme – application for remission of HECS‑HELP debt – whether "special circumstances" existed – decision under review affirmed.

LEGISLATION

Higher Education Support Act 2003 (Cth), ss 36‑20(1), 36‑21(1)‑(2), 87‑1, 90‑1, 93‑1, 96‑1, 238‑10(1)

Administrative Appeals Tribunal Act 1975, s 35(3)

SECONDARY MATERIALS

Administration Guidelines 2012, Chapter 3

REASONS FOR DECISION

Senior Member R W Dunne

30 June 2017

INTRODUCTION

1. In June 2015, the applicant enrolled in two related courses (“Units”) at a university (“University”) with Commonwealth assistance.

2. In January 2016, the applicant applied to the University for the remission of her HECS‑HELP debt under s 36‑20 of the Higher Education Support Act 2003 (Cth) ("Act”) in relation to the Units.  When the University declined the application, the applicant requested that the University reconsider the decision.

3. When the decision was affirmed by the University in April 2016, the applicant applied to this Tribunal for further review of the review decision.

4. As the applicant asserted she had been a victim of domestic violence, a direction was made under s 35(3) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) to restrict the publication of the names and addresses of witnesses appearing before the Tribunal or other disclosure of information tending to reveal the identity of a party to, or witness in, the proceeding before the Tribunal.

5. At the hearing before me, the applicant represented herself and the respondent was represented by Mr L Holcombe from HWL Ebsworth Lawyers. I admitted into evidence the T-documents and the supplementary T-documents lodged pursuant to s 37 of the AAT Act.

   ISSUE FOR THE TRIBUNAL

6. The issue for determination by the Tribunal is whether subsection 36-20(1) of the Act applies to the applicant in respect of the Units and, more specifically, whether there are “special circumstances” that applied to the applicant.

7. The question of “special circumstances” requires an assessment of whether the applicant’s circumstances satisfy the requirements of paragraph 36-20(1)(d) and subsection 36-21(1) of the Act.

   THE STATUTORY FRAMEWORK

8. Section 87-1 of 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.[1]

   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.

   [1]     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.

9. Section 90-1 of the Act sets out how a person becomes entitled to HECS-HELP assistance.  The amount of HECS-HELP assistance to which a person is entitled for a unit of study is the difference between the student contribution amounts for the unit and any up-front payments made in relation to the unit.

10. If a student is entitled to an amount of HECS-HELP assistance for a unit of study and no up-front payments are made for the unit, the Commonwealth must lend to the student the amount of HECS-HELP assistance which is paid to the university in respect of the unit.

11. However, as is 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 [sec] unit of study, 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, paragraphs 36-20(1)(d) and (e) of the Act provide:

    (d)the provider is satisfied that special circumstances apply to the person (see section 36-21); and

    (e)the person applies in writing to that provider for either or both:

    (i)the repayment of any amounts that the person paid in relation to his or her student contribution amount for the unit; or

    (ii)the remission of the person’s HECS-HELP debt in relation to the unit: and

    ….”

12. In relation to “special circumstances”, subsections 36-21(1) and (2) of the Act relevantly provide:

    “36-21 Special circumstances

    1For 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 in question; 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.

    2The 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.”

    Administration Guidelines 2012

13. 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.  In considering whether the applicant fulfilled the above requirements, I must also have regard to the terms of the Administration Guidelines. 

14. Subsection 238-10(1) of the Act provides that the Minister may, by legislative instrument, make guidelines of various kinds, including the Administration Guidelines 2012 (“Administration Guidelines”).  Relevantly, Chapter 3 of the Administration Guidelines deals with “special circumstances” as follows:

    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).

    3.5      CIRCUMSTANCES 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.

    3.10     CIRCUMSTANCES 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.

    3.15     CIRCUMSTANCES 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.

    EVIDENCE FROM THE APPLICANT

15. In giving her evidence, the applicant stated or acknowledged the following:

    (a)Her mental state was not good during 2015.  Her medical condition was adversely affected by the potential of domestic violence arising from a relative, who was also her landlord, visiting her in the latter part of December 2015 in the home in which she lived by herself.

    (b)She attended her treating doctor on 11 December 2015 and received two medical certificates.  These certificates were for the periods 1 December 2015 to 15 December 2015[2] and 1 December 2015 to 31 January 2016.[3]  On the medical certificate provided for the period 1 December 2015 to 31 January 2016 her doctor wrote “… I deem her to be unfit for completion of her assignments …” at the University in 2015.

    (c)When she enrolled in the two Units at the University on 22 June 2015, she completed a time clash declaration in respect of the Units.  This declaration applies where there is an overlap of two units in which the applicant has enrolled.  The applicant knew that she could not do both Units at the same time.

    (d)Both Units required active attendance and participation by enrolled students.  She did not always attend the Units and she knew attendance was compulsory for a person to complete each of them.

    (e)She completed 20 per cent of the assessment for one of the Units (but not any particular assessment item) and she did some work on the assessment item worth 20 per cent of the other Unit.

    (f)She did not do sufficient work on the Units to complete the requirements for either of them. 

    (g)In the class timetables for the Units, the start date for the first Unit was 7 December 2015 and the end date was 18 December 2015.  The start date for the second Unit was 30 November 2015 and the end date was 18 December 2015.  However, on 16 December 2015 the end date for the second Unit was extended to 21 December 2015. 

    (h)She did not withdraw from the Units before the 18 December 2015 census date because she was unwell, she could not think straight, but she also wanted access to the facilities for the Units available at the University.  If she withdrew from the Units, she would not have been able to access those facilities.  She wanted to access information on-line to utilise it in her studies, but without access to the facilities at the University this would not be possible.

    (i)Another reason why she did not withdraw was that she could not bring herself to do much study work because of the high temperatures at that period in December 2015.

    (j)She received notice on 16 or 17 December 2015 that her relative (her landlord) was coming to stay in the home in which she lived on 27 December 2015.  Because of the threat of domestic violence, she left the home and travelled interstate. 

    [2] Exhibit R1, p89.

    [3] Exhibit R1, p99.

    EVIDENCE FROM A FRIEND OF THE APPLICANT

16. A friend of the applicant gave oral evidence by telephone at the hearing.  In his response to a question by the applicant, the friend stated that he considered the applicant’s state to be quite unwell between 12 December 2015 and 18 December 2015, when she commenced formulating an escape plan to visit him interstate.  He said that after 18 December 2015, the applicant’s mental state improved. 

17. The friend’s memory on those dates was assisted, as his birthday was on 12 December.  He said he considered that the issue before the Tribunal was that the applicant could not ‘dis-enrol’ because she was travelling interstate to stay with him and his family.

    EVIDENCE FROM ANOTHER FRIEND OF THE APPLICANT

18. Another friend of the applicant gave evidence about the state of the applicant’s rental home and the difficulties she faced in dealing with the landlord.  His evidence did not deal at all with the substantive issues concerning the applicant’s study that were before the Tribunal.

    CIRCUMSTANCES OF THE APPLICANT

19. On 19 February 2015, the applicant applied for Commonwealth assistance by submitting an on-line HECS-HELP form.  On 20 March 2015, the applicant’s “Access Plan” took effect.  An Access Plan provides information about the impact of a student’s disability, mental health or medical condition on their studies.  The Plan helps students to negotiate reasonable adjustments with University staff so they can study successfully. 

20. In the applicant’s case, her Access Plan contained an Impact Statement which said:

    (a)       The student is likely to miss classes on occasion.

    (b)The student may need to request extensions for assignments and timed assessment tasks.

    (c)The student has a fluctuating medical condition.  Unanticipated fluctuations in health may impact on the student’s ability to plan workload.

    (d)The student experiences high levels of stress and anxiety which impact on their ability to undertake study tasks at times.

    (e)Non-consecutive days for exam schedule.  Preference for afternoon exams.

21. The applicant’s Access Plan set out her student responsibilities, which read:

    (a)       To distribute this document to the relevant staff.

    (b)To negotiate with university staff in a timely manner any reasonable adjustments or services.

    (c)       To contact Disability Services to review or update the Access Plan.

    (d)To negotiate requirements for school based examinations/test at least 2 weeks in advance with the relevant Course Coordinator.

    (e)To advise the Disability Adviser of any difficulties with the implementation of this Plan.

22. On 22 June 2015, the applicant enrolled in the Units for Study Period 7, which included completing the time clash declaration.  On 2 November 2015, Study Period 7 commenced.  On 2 December 2015, the applicant received an email from her lecturer, regarding her enrolment in one of the Units.  The email stated:

    “You are receiving this email as a courtesy having missed the first 3 days of the course.  Given the nature of intensive SP7 courses, at this stage you have missed too much information and instruction in order to successfully complete the course.

    It is strongly recommended you un-enrol from [the Unit] as soon as possible in order to avoid being charged deferred course fees and/or an adverse grade.”

23. On 18 December 2015, the census date for Study Period 7 in relation to the Units was set.  The compulsory teaching and assessments period for both Units also ended on this date. 

24. On 23 December 2015, the applicant received an email from the landlord saying that he was coming to Adelaide on 27 December 2015, he wished to stay at the applicant’s home and he would be leaving on 11 January 2016.

25. On 24 December 2015, the applicant applied to amend her enrolment at the University in special circumstances and to withdraw from the Units.  In her application, she outlined a number of matters which she submitted involved special circumstances.  She said these were:

    “Anxiety & Depression Medical Condition

    – see Medical Certificates + Disability Plan. 

    Classes were not attended. 

    Unstable living situation due to owner going bankrupt and trustees coming in.  Owner has history of domestic violence towards myself and advised he is going to live on premises.  Need to deal with threat to wellbeing.  Advised after census date. 

    NOTE: It is not possible to undertake two SP7 subjects in the same day/time slot for [……]”

    CONSIDERATION

    Does subsection 36-20(1) of the Act apply to the applicant in respect of the Units, and are there “special circumstances” that applied to the applicant?

26. Section 36-21 of the Act states that special circumstances apply to a 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.

27. The Administration Guidelines also specify circumstances in which a higher education provider will be satisfied of the matters set out in the previous paragraph.

28. The issue I have to determine is whether, by reference to all the matters referred to in paragraphs 26 and 27 above, there were “special circumstances” which applied to the applicant in respect of the Units.

29. I now do so, as follows.

30. When the applicant enrolled in the Units in June 2015, she also completed a time clash declaration in order to enrol simultaneously.  The census date for the Units was 18 December 2015.  Enrolled students in the Units were required to submit assessment items (worth 100% of the total mark) for both Units by 4.00pm on 18 December 2015, arguably the unit end date for both Units.  Prior to the census date, the applicant neither attended any of the 10-days intensive teaching period for either of the Units, nor attempted to complete or submit any of the assessment items. 

31. On 2 December 2015, prior to the census date, the applicant received an email from her lecturer, strongly recommending that she un-enrol from one of the Units to avoid fees and/or an adverse grade.

32. The applicant had in place an Access Plan with the University which allowed students to request extensions for assignments and timed assessment tasks.  However, she did not request an extension for assignments in relation to the Units in accordance with her Plan.

33. In the email addressed to the applicant dated 23 December 2015, the landlord stated he was coming to Adelaide on 27 December 2015 and intended to stay at the applicant’s home until 11 January 2016.  This was after the conclusion of the core teaching and assessment periods for the Units on 18 December 2015.

1. In the statutory declaration made on 25 July 2016, the friend of the applicant noted that the applicant was “… out of her primary residence between the 26^th of December 2015 and the 18^th of January 2016 due to the adverse effect of threatened domestic violence”.  I reiterate that that was after the conclusion of the core teaching and assessment periods for the Units on 18 December 2015.

2. In the medical certificate dated 11 December 2015, the applicant’s treating doctor deemed the applicant “unfit for completion of her assignments from 01/12/2015 to 15/12/2015 inclusive”, being prior to the relevant census date for the Units.

3. Further to paragraph 28 above, in determining whether there are “special circumstances” in relation to a particular Unit, I must be satisfied that circumstances occurred:

   (a)which were beyond the applicant’s control with respect to that Unit;

   (b)which did not make their full impact on the applicant until on or after the census date for that Unit; and

   (c)which made it impracticable for the applicant to complete the requirements of the Unit, during the period in which the applicant was to undertake that Unit.

   Were circumstances beyond the applicant’s control?

4. In answering this question, I must determine whether:

   (a)the circumstances in which the applicant found herself (namely those set out in paragraphs 30-35 above) and the applicant’s failure to withdraw from the Units before their census date, were circumstance that were beyond the applicant’s control; and

   (b)having regard to the requirements of the Administration Guidelines, a reasonable person would consider that the circumstances were not due to action and/or inaction on the part of the applicant and for which she was not responsible; and whether the situation was “unusual, uncommon or abnormal”.

   Respondent’s Contentions

5. In relation to the applicant’s circumstances that have been identified, the respondent contends that the applicant does not meet the requirements of the Administration Guidelines as it relates to the “beyond control” criterion.  The respondent also contends that, while the applicant’s mental health and life circumstances were beyond her control, she has not demonstrated how those circumstances were so severe that she could not take rational action to withdraw from the Units prior to the census date.  In particular, the respondent asserts that the applicant successfully withdrew from both Units on 24 December 2015.  This was a date on which the applicant says she continued to be affected by the special circumstances claimed.  However, she has not adequately explained why she was able to withdraw from the Units six days after the relevant census date, but could not do so prior to that date. 

6. Based on these factors, the respondent contends that it was within the applicant’s control to withdraw from the Units prior to the census date.  Had she done so, she would not be liable for the HECS-HELP debt for the Units.  It follows that the applicant’s failure to withdraw from the Units prior to the census date was due to her inaction, and not because of an “unusual, uncommon or abnormal” situation.

   Did the circumstances make their full impact on or after the census date?

7. The respondent contends that the applicant has not adequately identified how her circumstances, with respect to the Units, occurred:

   (a)before the relevant census dates, but worsened after those days;

   (b)before the census dates, but their full effect or magnitude did not become apparent until on or after those days; or

   (c)on or after the relevant census dates.

8. The applicant was being treated by her treating doctor from January 2015.  She saw him on 30 October 2015 and again on 11 December 2015.  While the medical certificates (and the treating doctor’s letter of 19 July 2016) supplied confirm that the applicant was suffering from the effects of her medical condition between 30 October 2015 and 27 November 2015, and again between 1 December 2015 and at least 15 December 2015, the documents supplied by the applicant do not indicate that her medical condition became worse after the relevant census date of 18 December 2015.  Similarly, the medical certificates do not support a finding that the full effect or magnitude of the applicant’s medical condition did not become apparent until after the relevant census date.  There is no evidence that the applicant’s diagnosis by her treating doctor or any other medical practitioner was materially altered after the relevant census date, that her symptoms increased or worsened after that date or even that the applicant saw any medical practitioner in the period between the census date and making either the remission application on 8 January 2016 or the request for reconsideration of the University’s decision on about 24 February 2016.

9. In the relation to the applicant’s living situation, she received an email from her landlord on 23 December 2015 (indicating his attention to live at the applicant’s home between 27 December 2015 and 11 January 2016), which was after the relevant census date.  In fact, there is a suggestion in the landlord’s email that he had raised his proposed visit to the applicant’s home in a text message sent to her approximately one week earlier.  It appears that the communication from the landlord prompted the applicant to leave Adelaide and to stay with a friend interstate for a period of almost three weeks.  However, even if that communication made its full impact on or after the relevant census date (that is 18 December 2015), the applicant would still be unable to meet all three criteria for special circumstances in relation to that matter.  It is clear that any special circumstances which related to the landlord’s intention to reside at the same premises as the applicant arose on or after 18 December 2015 when the landlord said he communicated that intention to the applicant by text message, or later on 23 December 2015, when he sent her an email.  Completion of the Units required the submission of all assignments by 18 December 2015.  As such, the respondent contends that the applicant’s living situation and any threat of domestic violence arising out of the landlord’s proposal to live at her home from 27 December 2015 did not, of themselves, make it impracticable for the applicant to complete the Units within the planned timetable for those Units.

10. The respondent submits that the circumstances of the applicant did make their full impact on her before the census date of 18 December 2015 because:

    (a)She was mentally ill throughout 2015 and had at least three medical certificates from her treating doctor for issues related to her mental state.

    (b)The applicant knew, on or about 16 or 17 December 2015, that her landlord was coming to stay at her home, prior to the census date.

    (c)It was the applicant’s evidence that she was quite mentally unwell from early December 2015.

    (d)In giving his evidence, her friend stated that her mental condition improved after 18 December 2015 as she had an escape plan that involved her travelling interstate to meet and stay with him.

    (e)There is no objective evidence to support the applicant’s contention that her mental state became worse and made its full impact on her after the census date.

11. I agree with the respondent’s submissions in paragraph 43.

    Did the circumstances make it impracticable for the applicant to complete the Units?

12. On the evidence available, the applicant has not demonstrated how it was impracticable for her to complete the requirements of the Units.  It appears that, due to her medical condition, it was impracticable for the applicant to complete the assessments for the Units during the scheduled time frame.  The medical certificate of her treating doctor deemed the applicant unfit to complete her assignments between 1 December 2015 and at least 15 December 2015.  However, she did not make any enquires about seeking an extension for the submission of her assessments (in accordance with her Access Plan).  Moreover, the medical certificate does not provide that the applicant was unfit to attend the classes for the Units during that period.

13. In relation to paragraph (c) of the test of special circumstances in subsection 36-21(1) of the Act, the respondent submits that the cause of the applicant not completing the Units was that she had not completed any of the assessment items for the Units.  One of the Units had a completion date of 18 December 2015 (the same day as the consensus date) and the other had a completion date of 21 December 2015.  The applicant had not fully completed any of the assessment items for either of the Units.  She had completed 20 percent of the assessments for one Unit and less than 20 percent for the other Unit.  All of the assessment items for one Unit were to be completed by 18 December 2015 and the other by 21 December 2015.

    Evidence from the Applicant’s Friends

14. The evidence in this case from the applicant’s friends was of no real assistance in dealing with the substantive issues before the Tribunal.  The first friend gave some evidence about the applicant’s mental state in December 2015.  The second friend gave evidence about the applicant’s medical condition and the state of the home she rented from her landlord.

    CLOSING SUBMISSIONS

15. The hearing in this matter concluded on 5 May 2017.  As the applicant indicated that she would have difficulty in making closing submissions orally and with Mr Holcombe’s agreement, I allowed the parties to make closing submissions in writing, by close of business on 12 May 2017.  Mr Holcombe provided his closing submissions on 12 May 2017.  At her request. I granted the applicant an extension until 19 May 2017 to provide her closing submissions in writing.

    Applicant’s Closing Submissions

16. In her closing submissions the applicant could not explain specifically why she was unable to withdraw from the Units before the census date.  However, she then said she dis-enrolled from the courses on 24 December 2015, also submitting an application for special circumstances on the same day. 

17. The applicant referred to the threat of domestic violence, to the change in her medical condition and to her prior school and tertiary education history.  She also referred to her ongoing anxiety and depression and acknowledged that there had been “inaction” on her part.  She did not read any university emails during the teaching period in December 2015.  She said she was concerned with the fundamental task of survival.  But this did not include continuing the courses or dis-enrolling from them.

18. The applicant says that her case pivots around the notion that her mental health worsened on or after the census date.  Her physical and mental wellbeing was placed at risk after the census date in relation to the threat of domestic violence from a person with a history of domestic violence to her.

19. The applicant says she enrolled in the Units in mid-2015 to be taken in December 2015.  Enrolment was undertaken at a time when, due to her mental health, she was unable to leave the house and had not completed her studies for the first half of the year.  At the time of the courses in December 2015, despite not being able to leave the house, the subject information for the courses were accessed online.

20. The applicant also says that between 16 and 17 December 2015 a SMS was received by her from the landlord, which was read on 18 December 2015.  High distress was initiated by the SMS from the landlord, stating he was going to live on the premises for three weeks from 27 December 2015.  The gas and electricity were also to be cut off.  These anticipated events coincided with the memories of what had happened a year prior, in the same place, at the same time, and with the same people.

    Respondent’s Closing Submissions

21. In the context of the application of the “beyond control” criterion, what was within the applicant’s control was her ability, and the opportunity, to withdraw from the Units before the census date following either:

    (a)the completion by the applicant of the clash of timetable declaration in June 2015;

    (b)her non-attendance at the Units, with her knowledge that attendance was necessary;

    (c)following the email of 2 December 2015 from her lecturer notifying the applicant that she had missed the first three days of the Units and strongly recommending her to “un-enrol”;

    (d)attending her treating doctor on 11 December 2015 and receiving two medical certificates for the periods 1 December 2015 to 15 December 2015 and 1 December 2015 to 31 January 2016.  On the medical certificate provided for the second period, the treating doctor wrote “I deem her to be unfit for completion of her assignments”;

    (e)gaining knowledge on or about 16 or 17 December 2015 that the landlord was coming to stay in her home and knowing that his presence would cause her difficulties. 

22. In addition, the applicant gave evidence that she did not want to withdraw from the Units as she wanted continued access to the art facilities provided by the University and knew that, if she withdrew from the Units, that access would cease.

    SUMMARY

23. Mr Holcombe submitted that there is evidence before the Tribunal that the applicant had an illness and that it did adversely impact on her during 2015.  On the evidence available, the illness involves a medical condition with mental elements which include issues of depression and anxiety. 

24. There is conflicting evidence on whether the illness became worse after the census date of 18 December 2015.  Mr Holcombe submitted that in light of the conflicting evidence, including that provided by the applicant and the friend she travelled interstate to stay with, the Tribunal cannot be satisfied that the applicant’s circumstances did not make their full impact until after 18 December 2015.  I agree with this submission.

25. In addition, if the applicant’s mental illness did become worse and did make its full impact after the census date, then that circumstance was not the cause of the applicant not completing the two Units.  By that date, she was to have completed all the assessment items (and she had not) and one of the Units had already ended.  The other Unit finished three days later.

26. On the evidence, as Mr Holcombe submitted, what was in the applicant’s control was her ability, and the opportunity, to withdraw from the Units before the Census date.  She did not do this because she wanted continued access to the facilities provided by the University and knew that, if she withdrew from the Units, that access would not be available.

    CONCLUSION

27. At the hearing, the applicant was before me and I heard her story.  I had available information she had provided about her tertiary education history.  I also had available a facebook transcript which gave me an insight into her personality.  She is a highly intelligent woman.  However, I was bound to follow the relevant law, the relevant guidelines and the decided legal cases.  Having done so, I am not satisfied on the evidence before me that special circumstances exist in the applicant’s case for the purposes of paragraph 36-20(1)(d) of the Act.

    DECISION

28. For the reasons set out above, the Tribunal affirms the decision under review.

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

.....................[Sgd]...................................................

Administrative Assistant

Dated: 30 June 2017

Date(s) of hearing:	19 January and 15 May 2017
Date final submissions received:	24 May 2017
Applicant:	In person
Advocate for the Respondent:	Mr L Holcombe
Solicitors for the Respondent:	HWL Ebsworth Lawyers