Bow and Secretary, Department of Education [2020] AATA 114 (4 February 2020)

1. The issue before the Tribunal is whether s104-25(1) of the Act applies to the Applicant. That is, whether ACAP on behalf of the Secretary of the Department of Education, must re-credit the Applicant's FEE-HELP balance with an amount equal to the amounts of FEE-HELP assistance that they received for the units of study undertaken.
2. This in turn requires the Tribunal to consider whether special circumstances apply to the Applicant in accordance with s104-25(1)(c) and 104-30(1), having regard to the relevant guidelines (for this Application it is the Higher Education Support Act 2003 - Student Learning Entitlement Guidelines (21/07/2004) (or the 'SLE Guidelines') which were in force at the time of this Application); in addition to meeting the requirements of the remaining requirements of s104-25(1) of the Act.

1. The following paragraphs outline relevant legislative provisions which apply to this application before the Tribunal.
2. The main provision concerned with re-crediting a person's FEE-HELP balance is s104-25(1) of the Act, where Higher Education providers on the Respondent's behalf must re-credit a person's FEE-HELP balance with an amount equal to the amounts of FEE-HELP assistance that the person received for a unit of study if:

(a) the person has been enrolled in the unit with the provider; and

(aa) access to the unit was not provided by Open Universities Australia; and

(b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake the unit; and

(c) provider is satisfied that special circumstances apply to the person (see section 104-30); and

(d) the person applies in writing to the provider for re-crediting of the FEE-HELP balance; and

(i) the application is made before the end of the application period under section 104-35; or

(ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.

1. In relation to special circumstances, s104-30 of the Act provides:

(1) For the purposes of paragraphs 104-1A(2)(b) and 104-25(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:

(b) do not make their full impact on the person until on or after the census date for the unit of study in question; and

(c) make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake the unit.

(2) If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.

(3) For the purposes of paragraph 104-25(2)(c), special circumstances apply to the person if and only if Open Universities Australia is satisfied that circumstances apply to the person that:

(b) do not make their full impact on the person until on or after the census date for the unit of study in question; and

(c) make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit.

Note: The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.

1. The legislation that was in force at the time the Applicant was enrolled in the units of study differed slightly to that which is currently in force today. The difference relates to section 104-30(2) of the Act currently in force. At the time the Applicant was enrolled in the units of study, s104-30(2) of the Act[9] as it was then, provided:

(2) If the Student Learning Entitlement Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 79‑5(1)(a), (b) or (c) [10], 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 79‑5(1)(a), (b) and (c)[11] (which relate to re‑crediting of Student Learning Entitlement) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.

1. The SLE Guidelines commenced on 27 July 2004 and were in force under s238-10 of the Act at the time the Applicant was enrolled in the units of study.
2. Chapter 5 of the superseded SLE Guidelines, provided the following in relation to special circumstances:

5.1 The purpose of this chapter of the guidelines 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 79-5(1)(a) of the Act); 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 (paragraph 79-5(1)(b) of the Act).

5.5.1 The 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.

5.5.5 This situation must be unusual, uncommon or abnormal.

5.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE

5.10.1 The 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.

5.15.1 Higher education providers must publish the timeframe within which they will consider applications, and within which they will notify applicants of their decision, for the re- crediting of the person's SLE. The method of publication is to be determined by the higher education provider.

5.15.5 In accordance with section 27A of the Administrative Appeals Tribunal Act 1975, the higher education provider is obliged to advise the applicant that, if they are dissatisfied with the initial decision, they may apply to the higher education provider for a review of that decision. The application must be made in accordance with the provisions of and the timeframes specified in the Administrative Appeals Tribunal Act 1975.

5.15.10 In accordance with section 209-10 of the Higher Education Support Act 2003, the application must be made by written notice and must be made within 28 days, or such longer period as the reviewer allows, after the day on which the person first received written notice of the decision.

1. In relation to the Application period, s104-35 of the Act provides:

(a) the person applying under 104-25(1)(d) for the re-crediting of the person's FEE-HELP balance in relation to a unit of study has withdrawn his or her enrolment in the unit; and

(b) the higher education provider gives notice to the person that the withdrawal has taken effect;

the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

(a) the person applying under paragraph 104-25(2)(d) for the re-crediting of the person's FEE-HELP balance in relation to a unit of study has withdrawn from the unit; and

(b) Open Universities Australia gives notice to the person that the withdrawal has taken effect;

the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

(2) If subsections (1) and (1A) do not apply, 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.

(a) the application is made under paragraph 104-25(1)(d) before the end of the relevant application period; or

(b) the higher education provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period;

the provider must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision on the application.

(a) the application is made under paragraph 104-25(2)(d) before the end of the relevant application period; or

(b) 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;

Open Universities Australia must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision of the application.

(2) The notice must include a statement of the reasons for the decision.

1. The Application was heard in Brisbane on 20 January 2020. The Applicant appeared by telephone and was self-represented. The Respondent was represented by Ms Kate Ervin, appearing by video link. The Tribunal considered oral submissions made by both the Applicant and the Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (refer to Annexure 1).

1. The Tribunal heard evidence from the Applicant in relation to their circumstances at the time their study was undertaken back in 2010, almost ten years ago. The Applicant gave evidence that during the 2010 period they:
   • experienced a marriage breakdown and subsequent divorce[12];
   • were left as sole carer for their children; and
   • were impacted by mental health issues due to the stress of the circumstances they had found themselves in.
2. The Applicant submitted that they became aware of their FEE-HELP debt in 2017 when seeking to lodge their income tax return, as the Applicant's increased income for the financial year was above the minimum repayment threshold and resulted in compulsory repayment of the outstanding debt.
3. The Applicant submitted evidence that their relationship had been suffering prior to the beginning of Term 1 of 2010, and the Applicant had moved to Brisbane in March of 2010 following a family issue which arose in February of 2010. The Applicant submitted that they had let circumstances lapse between March and April of 2010, but sought to take action in April of 2010.
4. Evidence submitted by way of electronic records from ACAP[13] confirm that on 16 April 2010, a note was made in relation to the Applicant contacting ACAP "going through huge personal/'family difficulties' - advised to defer and apply for sp circs.[14] Forms emailed to student". [sic]
5. Evidence submitted to the Tribunal shows that there were two further records on 21 April 2010 where requests were made by ACAP to the Applicant to provide further documentation in relation to their application for special circumstances, with the Applicant agreeing to defer their studies after the census date (being 12 March 2010) for the Trimester 1 subjects[15].
6. The Applicant submitted that in March of 2010 they had applied to Centrelink for assistance as a single mother. In May of 2010 Centrelink provided the Applicant with separation documentation so that the Applicant could lodge it with ACAP for consideration as part of their claim for special circumstances in regards to re-crediting their FEE-HELP debt (as the Applicant was unable to provide ACAP with divorce documentation at the time).
7. The Applicant submitted that ACAP had acknowledged these documents existed in their phone call in mid-2017, but as the documents are now older than seven years, the Applicant assumes that the documents they submitted are now destroyed along with their original Application for special circumstances with ACAP.
8. The Applicant submitted that they had approached Centrelink in December 2019 to retrieve information from archives in relation to their Centrelink separation documentation that they had obtained as proof of their circumstances at the time, but was advised this could take anywhere from 12 to 28 weeks.
9. The Tribunal notes that no evidence of the Centrelink separation documentation from May of 2010 was submitted as part of this Application, nor is there any reference to this documentation having been submitted as part of the file notes recorded by ACAP[16]. Therefore, the Tribunal is unable to give weight to the evidence of the Applicant, as it remains unverified.
10. The Applicant submitted evidence that they did not have access to a computer during the period of separation which occurred in 2010.
11. The Applicant further submitted that they had not received any communication or emails from ACAP in relation to their participation in the units of study for which they were enrolled, particularly in regard to logging into their account, participating in lectures or submitting assessments.
12. An email was sent to the Applicant on 27 May 2010 at 4.39pm from ACAP, stating[17]:

As discussed on the phone if you can please complete the below details and I can re-enrol you for term 2, 2010.

I have also asked Flexible Delivery to send you an email in regards to the differences between online and DE.

I will look into some option for you in regards to your Special Circumstances.

Module: Counselling Skills 1 Method of Study: Distance Payment Method: HECS

Module: Organisational Behaviour Method of Study: Distance Payment Method: HECS

1. An email was sent to the Applicant on 1 June 2010 at 11.43am from ACAP, stating[18]:

I have updated your address details and you are now enrolled in Counselling Skills 1 by DE but unfortunately Organisational behaviour is only offered online in term 2. Would you like to study Organisational behaviour online? If you can please let me know by the 2nd of June.

1. The Applicant wrote back to ACAP on 1 June 2010 at 12.58pm, stating[19]:

I never received an email from the Online People outlining the difference, so I dont know what I am really getting myself into, but yes, I will continue with the organisational behaviour, it needs to be done. Thanks for your help. Dani". [sic]

1. Whilst the Tribunal acknowledges that some time has passed since the events at the time the study in question was undertaken, the Applicant's evidence conflicts with submitted evidence outlined in the above paragraphs of this Decision.
2. When the Tribunal questioned the Applicant as to why they sought to re-enrol for Term 2, given the Applicant's claims in relation to their personal circumstances (as outlined in the abovementioned paragraphs of this Decision), the Applicant submitted they had no recollection of this correspondence and did not know what the email was, and it came as a "shock" to them.
3. The Tribunal notes that the Applicant had successfully completed two subjects they had been enrolled in during Trimester 3 of 2009, obtaining marks of a credit and high distinction[20]. The Tribunal further notes that the Applicant's caring responsibilities for their children pre-existed the date of enrolment for the disputed units of study in 2010, with that enrolment date being 11 August 2009[21].
4. The Tribunal was not presented with any evidence which verifies the Applicant's mental health issues they claim they were suffering at the time (and continue to suffer). When the Tribunal questioned the Applicant as to why no such materials had been submitted to support their application, the Applicant advised that a close family member was terminally ill and they had been focussing their time with them and their children.

Application of relevant legislation and guidelines

1. It is the Tribunal's role to stand in the shoes of the original decision-maker[22] and determine whether the decision was the correct or preferable one based on the material before the Tribunal[23].
2. The Applicant must meet all the elements of the statutory test set out in s104-25(1) of the Act, in order for ACAP (on behalf of the Secretary of the Department of Education) to re-credit the FEE-HELP assistance that was received for the units of study.
3. The Applicant satisfies the first three elements of the statutory test in s104-25(1)(a),(aa), and (b) of the Act. The Tribunal has previously outlined the units of study the Applicant was enrolled in, the units of study were provided by ACAP and not by Open Universities Australia, and the Applicant did not complete the requirements of the units of study during the period which the study was to be undertaken[24].
4. The contention is whether the Applicant satisfies the requirements of all remaining elements of the statutory test, being s104-25(1)(c),(d) and (e) of the Act.

1. In order for special circumstances to apply, the Applicant must meet the requirements of s104-25(1)(c)[25], s36-21[26], and 104-30[27] of the Act, with regard to Chapter 5 of the superseded SLE Guidelines. More simply, they must demonstrate that for the units of study in question, their circumstances:

(a) were beyond their control;

(b) did not make their full impact on them until on or after the census date; and

(c) made it impracticable for them to complete the requirements for the unit of study in the period during which they undertook, or were to undertake the unit.

1. Circumstances beyond a person's control are referred to in the SLE Guidelines, and includes a circumstance:

"... 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"[28];

Additionally, the situation "... must be unusual, uncommon or abnormal"[29].

Were circumstances beyond the Applicant's control?

1. In relation to the Applicant's marriage breakdown and caring responsibilities for their children, both of these factors pre-existed the commencement of the units of study in question and the relevant census dates. The Applicant has not provided evidence or made contentions in regards to any material impact of changes to their caring responsibilities for their children during this period.
2. The Tribunal accepts the Respondent's submission[30] that it was within the Applicant's control to either enrol or not enrol in the units of study in question or to withdraw from study prior to the census dates, this is particularly so in regards to Trimester 2 studies, with the Applicant re-enrolling on 27 May 2010[31].
3. In regards to the Applicant's mental health at the time of the units of study in question, no evidence has been submitted to verify their claims regarding[32]:
   • the impact which the claimed conditions had on them;
   • whether the claimed conditions pre-existed enrolment, or were exacerbated during the period in a way which was unusual, uncommon or abnormal; and
   • whether the claimed conditions were severe enough to prevent the Applicant from making rational decisions, such as withdrawing from the units of study prior to the census dates.
4. Whilst the Tribunal is understanding of the Applicant's reasons for the non-submission of supporting materials to verify their mental health claims, without any substantiation the Tribunal is unable to give any weight to these claims. The Tribunal finds that the Applicant has not demonstrated that any of the claimed mental health conditions they were suffering at the time of the units of study in question, constituted a circumstance beyond their control.

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

1. In relation to the Applicant's marriage breakdown and subsequent divorce, the Applicant's evidence confirmed that the relationship had broken down prior to the census date of 12 March 2010 of Trimester 1 (and accordingly the census date of 25 June 2010 for Trimester 2). The Tribunal is not satisfied that the circumstances of this were such that it made its full impact on or after the census dates for the units of study in question.
2. In regards to the Applicant's caring responsibilities for their children, these responsibilities pre-existed the commencement of the units of study in question, with the Applicant not providing any evidence which demonstrates any material change in circumstances during this period. The Tribunal is not satisfied that the Applicant's caring responsibilities had its full impact on or after the census dates for the units of study in question.
3. The Applicant has failed to substantiate their claimed mental health conditions experienced during the units of study in question. The Tribunal is not satisfied the Applicant's claimed mental health conditions had their full impact on or after the census dates for the units of study in question.

Did circumstances make it impracticable for the Applicant to complete requirements of the units of study in question?

1. In regards to whether an Applicant's circumstances made it 'impracticable' to complete study requirements, the Tribunal refers to Ullah and Secretary, Department of Education and Training [2018] AATA 2159, where Member Hyman at paragraph 36 stated:

"In my view none of the matters canvassed made it impracticable for Mr Ullah to continue his studies. Mr Ullah's problems with his studies certainly made it more difficult for him to succeed, but they did not make it impracticable to continue, and he acknowledged during the hearing that although internet access in his village was limited, it was not so limited as to make it impossible for him to continue his studies. His loss of employment when he left Pakistan no doubt reduced his income, but did not prevent him from studying. His wife's health, as noted above, did not, on the evidence available to me, change significantly after the census date and so there is no evidence that it had an impact on his ability to study."

1. The Tribunal further refers to Georgiou and Secretary, Department of Education and Training [2019] AATA 170, where Senior Member A Poljak at paragraph 20 stated:

"I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. However, while the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of the Units, it is insufficient to establish that the circumstances were such that it was impractical for this to be done. I note that in the letter of Ms Malone she speaks of the applicant's cognitive difficulties and its impact on her decision-making capabilities; I give this evidence little weight as it is not contemporaneous to when the applicant allegedly withdrew from the Units, or the census date in 2013."

1. The test for whether an Applicant's circumstances made it impracticable to complete their course of study in question is a high bar. As Deputy President Forgie in Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at paragraph 45 stated, ""Impracticable" means "... not able to be done"". The Applicant has demonstrated that in the third Trimester of 2009 they were able to pass their subjects with commendable marks.
2. The Tribunal accepts that the Applicant's situation back in 2010 was extremely unfortunate. However, based on the evidence available to the Tribunal, the Applicant has not demonstrated that their claimed circumstances were such that it would have resulted in them being unable to complete the requirements of the units of study in question or that it would have been impracticable for this to be done.
3. In view of the findings outlined in this Decision, the Tribunal is not satisfied that special circumstances apply to the Applicant as required by s104-25(1)(c) of the Act.

I certify that the preceding 56 paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola.

Solicitors for Respondent: Ms Kate Ervin, Maddocks (via video link)

Section 37 T Documents, paged 1 to 272, received 19 August 2019.

Respondent's Statement of Facts, Issues and Contentions, received 1 November 2019.

[2] A student may be entitled to FEE-HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met. The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a higher education provider or, if the student accesses units through Open Universities Australia, that body, to discharge the student's liability to pay his or her tuition fees. (Refer to s101 of the Higher Education Support Act 2003 (Cth)).

[9] Taken from a compilation of the Act as at 24 February 2010, https://www.legislation.gov.au/Details/C2010C00099.

[10] This section of the Act as it was in force on 24 February 2010, is consistent with s36-21 of the Act which is currently in force.

[12] A divorce order was made on 31 August 2010, and took effect from 1 October 2010.

[14] Shorthand for special circumstances.

[16] As outlined in Exhibit 1, T10, page 43.

[22] Senior Member Hunt in Faulkner and Comcare [2007] AATA 1541 [27].

[23] Bowen CJ and Deane J in Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419.

[25] This section of the current Act is consistent with the section in the Act which was in force at the time the units of study were undertaken.

[26] This section of the current Act is consistent with the section in the Act which was in force at the time the units of study were undertaken (s79-5 of the Act as it was in force at the time).

[27] As previously outlined in this decision, this section of the current Act is consistent with the section in the Act which was in force at the time the units were undertaken, except for s104-30(2), which referred to the SLE Guidelines as opposed to the Administrative Guidelines.

[30] Exhibit 2, page 13, paragraph 13.13.

[32] Refer to Tralongo and Secretary, Department of Education [2016] AATA 393 at paragraph 24; PJPF and Secretary, Department of Education and Training [2016] AATA 833 at paragraph 26; and Magliano and Secretary, Department of Education, Employment, and Workplace Relations [2012] AATA 43 at paragraph 17.