The applicant's evidence is that she was not aware of her FEE-HELP debt until she completed her tax return in 2015 and discovered that she owed a debt in the sum of $8000 for the Units of study.
The applicant relies on a letter of Ms Kim Malone, clinical psychologist, dated 7 November 2017, which provides:
[2]
"I am writing in regards to [the applicant], whom I have known on a professional basis since 25 October 2017.
[The applicant] presented following a referral from her general practitioner, Dr Vincent, for an opinion and management in the context of depression.
Upon further assessment [the applicant] reported full Diagnostic Statistics Manual-Version 5 (DSM-V) for Adjustment Disorder with Depressed Mood.
Such an Adjustment disorder was subsequent to multiple stressors, including a relationship breakdown, as well as ongoing stress from her inability to resolve a recurrently and increasingly invoiced outstanding Vet-fee amount for a course in Psychology she enrolled in at Australian College of Applied Psychology (ACAP) in February 2013, during which she attended only three lectures, and then left the course.
Around the time I had met [the applicant]...
... she stated she believed she had withdrawn from the Course, however had since been advised she had not done so in a formal basis. Nonetheless, [the applicant] did not receive accurate information from the administrative staff and as a result did not go through the correct procedures, of which she only learned in hindsight. Such hindsight came following her group certificate notification of a debt, which has increased annually since that time, and her contacting ACAP.
...
I am writing to support her in being excused from such a debt through the miscommunication, as well as cognitive confusion which was present throughout the stressful experiences she went through in 2012, which continued through 2014, and intermittently since. Herein, [the applicant] did not possess the presence of mind, clarity in decision-making and problem-solving processes to successfully resolve this financially burdensome issue".
[3]
The applicant's re-credit application was not made within the statutory time period. The time limit for an application under paragraph 104-25(1)(e) of the Act is a threshold issue in this matter as it requires that the applicant's application to re-credit her FEE-HELP balance be made either before the end of the application period in section 104-35 of the Act - being 12 months after the applicant's withdrawal notice takes effect - or 12 months after the period during which the applicant was to undertake the Units. The ACAP has no record of the applicant's indication to defer or leave the Units of study or the Bachelor of Psychology before the census date. The relevant 12 month period is then to be calculated from when the Units of study concluded, namely the end of Trimester 1, 2013, which was 17 May 2013, as such the relevant 12 month application period expired on 17 May 2014 (relevant application period). The applicant applied to ACAP for the re-credit of her FEE-HELP debt under section 104-25(1) of the Act on or around 29 June 2015, just over 12 months late.
ACAP has the power to waive the 12 month application period if the applicant demonstrated that "it would not be, or was not, possible for the application to be made before the end of that period"; see section 104-40(1)(b) of the Act. The records show that three emails were sent to the applicant on 5 June 2013 (for three of the Units of study), advising her that she had exceeded the maximum number of classes that can be missed for the Units. The applicant claims, under sworn evidence, that she never received that correspondence and this is accepted by the respondent. I accept the applicant's evidence that she was unaware of her FEE-HELP debt until she completed her income tax return in 2015; it follows that this lack of knowledge meant that it was not possible for the applicant to make an application for re-credit before the relevant period expired on 17 May 2014. I am satisfied that the relevant application period should be waived.
The remaining question is whether subsection 104-25(1) of the Act applies to the applicant in relation to the Units. I must be satisfied that circumstances occurred (section 104-30):
(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 the 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.
The above requirements are cumulative, meaning that for the test to apply and for the applicant's FEE-HELP debt to be re-credited, the applicant must satisfy all elements of the statutory test. When determining this question I have also had regard to the Administration Guidelines.
In regard to whether the circumstances were beyond the applicant's control with respect to the Units, I note that the applicant had available to her, and was aware of, the ACAP UG and VET Domestic Student Guide 2013 (the Guide). At hearing the applicant stated that she doesn't recall seeing it however she acknowledged that it would have been a document provided to her. Upon signing her enrolment form to ACAP, the applicant declared that she was aware of the Guide. The Guide details that "Notification of withdrawal from your course must be made in writing to ACAP via submission of a Withdrawal from Study Form to the Student Administration Department". The lack of knowledge of course requirements in circumstances where that information is readily available to the student and failure to follow relevant course or program requirements that have been communicated to the student are not considered circumstances that are beyond the student's control; see Zabaneh and Secretary, Department of Education and Training[2016] AATA 569 (3 August 2016) (Zabaneh).
The applicant's evidence is that she suffered from depression and anxiety prior to 'withdrawing' from the Units; during the time she was enrolled in the Units and prior to the census date. This is confirmed by the evidence of Ms Malone who advised that the applicant suffered "cognitive confusion" throughout "the stressful experiences she went through in 2012, which continued through to 2014, and intermittently since". While I accept that the applicant's condition is beyond her control, I am not satisfied that it made its full impact on the applicant until on or after the census date for the Units. At hearing the applicant confirmed that her circumstances occurred and were known before the census date. Therefore, I am not satisfied that that the applicant meets section 104-30(1)(b) of the Act.
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.
[4]
As I have found that the applicant does not meet the requirements of section 104-25(1) of the Act, she is not entitled to have her FEE-HELP debt re-credited. The decision under review is affirmed.
[5]
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak