EDUCATION - higher education support - HECS-HELP - debt remission - special circumstances - whether circumstances were beyond the control of the applicant - the decision under review is affirmed.

Higher Education Support Act 2003 (Cth), ss 36-20 & 36-21

1. Ms Tralongo is a 60 year old mother living in Mt Gambier. She is a law student studying externally through the Queensland University of Technology. Since early 2008, Ms Tralongo has suffered from a very debilitating and serious illness named Churg-Strauss syndrome. Ms Tralongo has applied to the tribunal for a review of a decision to refuse to remit her HECS debt under section 36.20 of the Higher Education Support Act 2003 (the Act).
2. Ms Tralongo's application to remit was made on 27 January 2015 with respect to two units of study in semester two of 2014. The subjects of study were Criminal Responsibility and Constitutional Law. Her application was refused by the Queensland University of Technology by letter dated 18 March 2015. That decision was then affirmed by letter dated 24 April 2015 and Ms Tralongo now seeks to review that decision.

1. Section 87-1 of the Act provides the basis for HECS-HELP assistance. The Act provides that a student has a liability to repay a HECS-HELP debt for units of study if the student is enrolled in the relevant units of study as at the census date for those units. The census date of the relevant units of study in this case is 15 August 2014. A person can make an application under s 30-20 of the Act to a higher education provider for the remission of a person's HECS debt for a unit of study. Subsection 36-21 of the Act provides that a higher education provider must determine that s 36-20 of the Act is applicable to the student where the provider is satisfied that special circumstances apply to the person.
2. What constitutes special circumstances is provided by s 36-21 of the Act which provides:

Special circumstances

(1) For 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; 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.

(2) The 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.

1. The Minister is also empowered by section 238.10(1) of the Act to make Administration Guidelines (Guidelines). Chapter 3 of the Guidelines makes provision in respect of special circumstances at paragraph 3.1:

Purpose:

3.1.1: The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances applied the person that:

(a) are beyond the person's control;

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

(c) make it impractical 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.

1. The Guidelines then go on to deal individually with the circumstances beyond a person's control and the circumstances that do not make their full impact until on or after the census date and the circumstances that make it impracticable for the person to complete the requirements.
2. The Guidelines are a legislative instrument as they are of a legislative character and made in the exercise of a power delegated by the parliament. Subsection 36-21(2) of the Act provides that a decision under that section must be in accordance with the Guidelines

1. The decision concerns the application of s 36-20 of the Act which provides for the removal of financial liability for a unit of study. Section 206-1 (1A) of the Act provides that a decision will be reviewable if the decision made by the higher education provider pronounces that s 36-20 of the Act does not apply to a person. A person whose interests are affected by a reviewable decision may request a reconsideration of the reviewable decision under s 209-10 of the Act. A reviewable decision that has been reconsidered may be reviewed by this tribunal under s 212-1 of the Act.

1. I have to determine whether in respect of the two units of study there are special circumstances which:
   • (a) were beyond the control of the applicant; and
   • (b) did not make their full impact on the applicant until on or after the census date; and
   • (c) which made it impracticable for the applicant to complete the requirements for the relevant units of study during the period in which she undertook these units.

Those requirements are cumulative. If there is a failure with respect to any one of them then the applicant will not succeed.

1. Ms Tralongo lives in Mt Gambier and studies as an external student and she first commenced studying law in 2006 through the Queensland University of Technology. She enrolled in subjects in semester 2 of 2006 and both semesters in 2007 but she failed to pass any of those subjects.
2. In March 2008 she was diagnosed with Churg-Strauss vasculitis and was admitted to the Flinders Medical Centre. This is a serious condition which affected her lungs and her breathing as well as her nerves and it requires ongoing management. Ms Tralongo was approved for re-admission to study law in June 2012. In July 2012, she requested Commonwealth assistance.
3. This is not Ms Tralongo's first remission application.
4. Her first remission application was on 25 March 2013 when she applied to remit a debt with respect to the subject, Contracts B in semester two of 2012. This application was supported by a medical certificate dated 22 March 2013 from Dr D J Hough who stated that she had an exacerbation of her disease which affected her study. This remission application was approved.
5. The next application was 16 August 2013 with respect to the subjects of Equity and Evidence. Once again it was supported by a letter from Dr Hough who referred to an exacerbation of her illness. Her application was at first declined but on review approved. The next remission application was 22 February 2014 with the respect to the subject, Criminal Responsibility in semester two, 2013. Once again it was supported by Dr Hough's correspondence. The application by Ms Tralongo was declined at first instance and on review.
6. On 30 July 2014 there was a further remission application for Contracts B, semester one, 2014, and this was declined on 1 September 2014 but then approved. There was a further remission application on 25 August 2015 for the subjects of Torts and Evidence, semester one, 2014, once again, supported by a statement from Dr Hough. This was declined on 11 September 2014 but then approved.

1. Ms Tralongo gave evidence about her illness which she described as very rare. It causes her to become very weak and tired. She also suffers from the related illness of asthma and has a history of kidney stones. She said that she will end up in a wheelchair. Ms Tralongo gave her evidence in a very calm and forthright matter and I never got the impression that she was exaggerating the chronic illness that she suffers.
2. She has shown great courage in the face of significant adversity to continue with her studies in the law. It would appear that her illness has been the main reason why she has not been able to successfully complete any subjects over a total of about five years of study. One of the characteristics of the illness as explained by Ms Tralongo is that it regularly flares up or becomes worse. Ms Tralongo gave evidence that this can be caused by numerous things such as when she gets the flu or becomes stressed. It is during these periods of exacerbation that Ms Tralongo has difficulty with her studies.
3. Ms Tralongo's evidence in this regard is supported by the letters from Dr Hough which were provided in support of her previous applications for remission. Dr Hough talked of an exacerbation of her disease or illness during periods in semester two of 2012 and in semester one of 2013 and in semester one of 2014. Ms Tralongo said that the stress of study, particularly the need to prepare assignments, and for exams, would lead to an exacerbation of her illness. This must have been very apparent to her when she enrolled in Criminal Responsibility and Constitutional Law in semester two of 2014.
4. It must also have been very apparent to her in the period before the relevant census date of 15 August 2014 which is the effective cut-off date after which a student incurs a HECS liability. Mr Brackenreg for the respondent took Ms Tralongo through the medical notes from the Hawkins Medical Centre for the period July 2014 to January 2015. They record regular consultations regarding numerous items such as diabetes, eye discharge, broken ribs due to a fall in August 2014 and a urinary tract infection in early 2015.
5. Despite these ongoing issues, Dr A Bradbeer, who Ms Tralongo described as her asthma doctor, described her as going reasonably well when he met with her on 30 September 2014. The notes from Dr Hough in 2014 and early 2015 do reflect an exacerbation of her illness in the nature of what had occurred during previous semesters of study. On 7 November 2014, Dr Hough wrote that she was having some changes to her medication which was causing fatigue and making study more difficult. On 3 February 2015, Dr Hough wrote that she had had a flare up of her medical condition and that she was unwell for the period 20 September to 15 November 2014.
6. Mr Brackenreg for the respondent said that the contemporaneous notes did not corroborate this assertion and I tend to agree with that. Further, there is evidence that Ms Tralongo did not do a Constitutional Law assignment which was due on 26 August 2014 which was in the period before the 20 September 2014 period referred to by Dr Hough.
7. In any event, it is not necessary to rely on those findings because it is my finding that these regular flare ups or exacerbation of illness caused by amongst other things, the stress of study, were typical of the Churg-Strauss syndrome and had been apparent for some years before the second half of 2014.
8. The evidence of the urinary tract infection from Dr Hough on 12 January 2015 was, "A few days not improving." Then by letter of 3 February 2015 with respect to renal stones, Dr Hough said that she does not have significant abdominal or loin pain. I also note that Ms Tralongo did attend her deferred exams on 6 and 9 January 2015.

1. I consider that Ms Tralongo has not satisfied the requirements of special circumstances in section 36-20(1)(d) of the Act. In this regard, as to whether the circumstances were beyond Ms Tralongo's control, I say that the failure to withdraw by the census date was not beyond her control and that her situation was not unusual or uncommon in the circumstances of the disease having been first diagnosed in March 2008. Any flare up or exacerbation was not unusual or uncommon for Ms Tralongo who had similar flare ups whilst studying in previous semesters. Therefore, Ms Tralongo does not satisfy subsection 36-21(1)(a) with respect to special circumstances.
2. With respect to subsection 36-21(1)(b) which relates to the circumstances applying to a person that do not make their full impact on a person until on or after the census date for the unit of study, it cannot be said that the circumstances of her illness did not make their full impact until after the census date. Indeed, the circumstance of a flare up or exacerbation were regular in previous semesters, such that their impact occurred well before the census date of 15 August 2014.
3. I do not need to consider subsection 36-21(1)(c), namely that circumstances apply to the person that 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,. However, I note that Ms Tralongo did manage to attend her deferred exams on 6 and 9 January 2015 so I find that it was not impracticable for Ms Tralongo to complete the requirements for the unit during the relevant period.
4. I affirm the decision under review.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Britten-Jones

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