HIGHER EDUCATION - FEE-HELP - where applicant enrolled in units part-time - online study - wife pregnant - thyroid condition - birth of child - neonatal jaundice - where applicant withdrew from units after the census date - difficulties with assessments - where applicant studying remotely in Pakistan - whether special circumstances - whether beyond applicant's control - whether circumstances made their full impact after the census date - whether circumstances made it impracticable for applicant to continue studies - decision under review affirmed

A New Tax System (Family Assistance) Act 1999 s 101

Administrative Appeals Tribunal Act 1975, s 37

Higher Education Support Act 2003, ss 36-21, 87-1, 101-1, 104-1, 104-25, 104-30, 107-1, 107-5, 129-1, 169-25, 206-1, 209-10, 212-1, 238-10

Higher Education Support Act Administration Guidelines

Social Security Act 1991 ss 1237AAD, 1184K

Killen and Secretary, Department of Education and Training [2017] AATA 774

1. This decision is about whether a FEE-HELP debt owed by the applicant, Mr Ikram Ullah, should be remitted. Mr Ullah enrolled in two units in Semester 2, 2016, and received assistance through FEE-HELP, assuming a debt under the FEE-HELP scheme accordingly. Mr Ullah was unable to complete the two units. On 2 May 2017 Mr Ullah applied to his university, the University of Southern Queensland (USQ) for re-crediting of his FEE-HELP (i.e. remission of his FEE-HELP debt). On 8 June 2017 USQ denied his application. Mr Ullah requested a review of that decision on 18 July 2017, and USQ affirmed the decision on 24 August 2017. On 19 September 2017 Mr Ullah applied to this tribunal for review of the USQ's review decision.
2. The tribunal held a hearing on 14 June 2018. Mr Ullah appeared in person and gave evidence. The Secretary, Department of Education and Training, the respondent in this case, was represented by Mr Lex Holcombe of HWL Ebsworth Lawyers.
3. The tribunal had before it the documents submitted by the Secretary under section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents), a witness statement by Mr Ullah dated 19 March 2018 but not signed (Exhibit A1) and other papers comprising an email exchange between Mr Ullah and his lecturer or tutor in one of the units, a note giving information about a project Mr Ullah has in mind to build a school for his local community in Pakistan, and a covering note (Exhibit A2). The Secretary provided a statement of facts, issues and contentions, together with a chronology of relevant events (Exhibit R1).
4. Mr Ullah said at the hearing that he should be addressed by that name ("Mr Ullah"), implying that that is his surname. However he appears in various documents as "Ikram Ullah" and "Ikram Khan" and his wife's name is "Ikram Faiza". That suggests that his surname is "Ikram" rather than Ullah, although in his exchanges with his teacher, Mr Gavin Austin, he signs off as Ikram and addresses his teacher as "Gavin". As he appears to be identified in all the records of the Department of Education and Training with the surname "Ullah" and gives his family name as "Ullah" in forms (such as the application for review), that is how he is referenced in this decision.

1. The issue before the tribunal is whether "special circumstances" apply to Mr Ullah so that his FEE-HELP debt should be remitted, that is:
   • whether he was affected by circumstances beyond his control; and
   • whether these circumstances did not make their full impact on him until after the census date for his units; and
   • whether it was impracticable for him to complete the requirements of the course.

1. The governing legislation in this matter is the Higher Education Support Act 2003 (the Act). Section 101-1 explains that a student may be entitled to FEE-HELP assistance for study for which the student is not Commonwealth supported, if certain requirements are met (section 87-1 provides that HECS-HELP assistance is for Commonwealth supported units). Section 104-1 of the Act sets out conditions governing entitlement to FEE-HELP. A student who receives FEE-HELP has payment made for their tuition fees less any payments made by the student (or another party) (sections 107-1, 107-5). FEE-HELP payments are a loan by the Commonwealth and must be subsequently repaid (section 129-1).
2. Under certain circumstances, the FEE-HELP paid for a particular unit can be re-credited to the student's FEE-HELP balance, i.e. the HELP debt accrued for the unit can be forgiven. Section 104-25 provides that a higher education provider must, on the Secretary's behalf, re-credit the student's FEE-HELP balance for a unit where the person has not completed the unit, has applied for re-crediting, and (in paragraph 104-25(1)(c)) special circumstances apply to the person. The meaning of "special circumstances" is elaborated in subsection 104-30(1), which specifies that 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:

1. are beyond the person's control; and
2. do not make their full impact on the person until on or after the census date for the unit of study in question; and

1. 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.

1. Section 238-10 of the Act allows the Minister to make guidelines by legislative instrument for various purposes covered by the Act. The listed guidelines that may be made include Administration Guidelines for section 36-21 (among others). Subsection 104-30(2) states that 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 taken under the present section must be in accordance with those guidelines. A note to the subsection points out that paragraphs 36-21(1)(a), (b) and (c) are identical to paragraphs 104-30(1)(a), (b) and (c).
2. Section 169-25 of the Act requires that a higher education provider must specify a census date for each unit of study.
3. The Administration Guidelines 2012 (the Guidelines) are a legislative instrument made under section 238-10 of the Act (as set out above). Chapter 3 of the Guidelines deals with special circumstances, and sets out detail regarding paragraphs (a), (b) and (c) of the provisions in subsection 36-21(1), which, as noted above, are identical to the same paragraphs of subsection 104-30(1), and must be followed in decision-making under that section. The Guidelines provide as follows:

3.5 Circumstances beyond a person's control

3.5.1 A 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.

3.5.5 The 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

3.10.1 A 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

3.15.1 A 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.

1. Part 5.7 of the Act provides for review of decisions. Section 206-1 provides that a decision to refuse re-crediting of a person's FEE-HELP balance is a reviewable decision. Section 209-10 requires that if a person affected by a reviewable decision requests reconsideration of a reviewable decision, the reviewer must reconsider the decision and confirm it, vary it or set it aside. Section 212-1 provides for application to this tribunal for review of a decision confirmed, varied or set aside under section 209-10.

1. The facts of this matter are not in dispute. Mr Ullah, whose current employment is as a contractor, wished to train himself in education so that he could become involved in providing education in his home country, Pakistan, where he hoped to set up a school in or near his village (Ex A2). He enrolled in two units in Semester 2, 2016 at USQ, namely LIN8001, Principles of second language learning and LIN8002, Methodology in teaching a second language. Each unit had a census date of 5 August 2016 (T5, folio 35, incorrectly identified as T55). The tuition fee for each unit was $2,170, so that for the two units together the fees came to $4,340. That is the amount that went to Mr Ullah's FEE-HELP balance (there was also an amenities fee of $72, which is not paid out of FEE-HELP and for which no re-crediting is sought). The unit commenced around 11 July 2016.
2. Mr Ullah's wife, Ms Faiza Ikram, fell pregnant in early 2016, with the child expected to be born in October 2016. Early in the pregnancy, tests revealed that Ms Ikram suffered from subclinical hypothyroidism (T8), which is associated with an increased risk of adverse pregnancy complications, including premature birth, low birth weight and miscarriage among others. Mr Ullah, lacking family support in Australia, took his wife back to Pakistan in February 2016. In oral evidence Mr Ullah said that he left her there in the care of his family and returned to Australia on 19 March. On 24 August, after his studies had commenced, and on the basis that his wife's pregnancy was not progressing well, he returned to Pakistan. His courses were both online, and so he was able to continue his studies remotely.
3. Mr Ullah had some difficulties in one of his courses with an online assignment, as is apparent from the online exchanges in Ex A2. The unit required that he post online comments on various course matters, and then select and submit some of those comments for assessment (the details of the unit and its assessment are set out at T14). Mr Ullah made the postings, but did not select and submit some of them for assessment. He was given a zero mark as a result, which his lecturer insisted would have to remain. The assignment was worth 20% of the mark for the unit. This occurred in early September 2016.
4. On 10 September 2016 Mr Ullah withdrew from both courses through an online transaction (T3, f 23).
5. Mr Ullah's daughter Maira was born on 14 October 2016. She was well at birth but two days later developed quite severe jaundice and was treated with ultraviolet light for seven days to bring it under control (T8). Maira recovered and has made normal progress since that time.
6. Semester 2 at USQ finished on 4 November 2016. Mr Ullah said that he returned to Australia on 16 November 2016. He submitted an application for withdrawal without penalty on 2 May 2017 (T8 - 2 May is the date on the application form but the university records receiving it on 25 May - see T9). USQ wrote to Mr Ullah on 8 June 2017 rejecting his application and providing reasons. On 18 July Mr Ullah applied for review of USQ's decision (T11 - Mr Ullah sought and was granted an extension of time to lodge his application beyond the 28 days specified in section 209-10 of the Act). USQ confirmed its original decision on 24 August 2017 (document unnumbered, identified as T13, at folios 80-82).

1. Mr Ullah argued that his course fees should be re-credited because he had been obliged to withdraw from the units for reasons that met the test of special circumstances, specifically with regard to the challenges arising from studying online in a remote part of Pakistan while his wife was in poor health and his newborn baby daughter was going through a crisis with jaundice.
2. The Secretary argued that Mr Ullah was aware of the possibility of complications to his wife's pregnancy from well before taking up his course; that it was the obstacles in the way of success in his studies that encouraged him to withdraw; that the risks to his wife's health do not appear to have worsened after the census date; that his baby daughter's jaundice had lasted only for a week and would not of itself have made it impracticable to continue; and that conditions in Pakistan more generally would not have made it impracticable for him to continue his studies.

1. It is clear that Mr Ullah was covered by the provisions relating to FEE-HELP rather than HECS-HELP, i.e. he was studying units that were not Commonwealth supported (T-5, folio 35). For his FEE-HELP balance to be re-credited, he must meet the special circumstances test set in paragraph 104-25(1)(c), which in turn requires him to meet the criteria set out in section 104-30 and elaborated in the Guidelines.
2. There are a number of examples of the use of the term "special circumstances" in Commonwealth legislation. Sections 1237AAD and 1184K of the Social Security Act 1991 and section 101 of the A New Tax System (Family Assistance) Act 1999 are cases in point. A body of case law referring to the term has developed that provides some guidance on the exercise of what is otherwise a broad discretion. Mr Holcombe argued, and I accept, that the guidance given in the present legislation and in the Guidelines effectively displaces the case law that applies in other contexts. It provides a specific and binding guide to the application of the term; and I note that the Guidelines, being a legislative instrument, have a greater weight than their name might at first seem to imply (in fact the Guidelines seem perhaps inaptly named, in that many of the provisions are couched in mandatory language rather than language designed to guide the exercise of discretion).
3. Mr Holcombe argued that the formulation "if and only if" used in section 104-30 implies that a tight and strict causation needs to be demonstrated, but, with respect, that is not the effect of that phrase. The formulation is well known in logic and mathematics, as well as in the law: it implies that the conditions that follow are both necessary and sufficient. In this instance it requires that Mr Ullah meet all of paragraphs 104-30(1)(a), (b) and (c); and that provided he does so nothing further need be established to meet the special circumstances test.
4. Matters mentioned by Mr Ullah that might be regarded as contributing to his special circumstances include his wife's thyroid condition; his difficulties with assessment for at least one of the units in which he was enrolled; his work as a contractor, which offered him limited flexibility; and the condition of his newborn, Maira, during October 2016.

Were Mr Ullah's circumstances beyond his control?

1. Ms Ikram's thyroid condition diagnosis was made in February 2016 (T8, folio 58) and the risks associated with it were identified at the same time. Some of the tests were done in Australia and some in Pakistan. Those early in the year were at 5 January and 15 February 2016 in Australia: the levels of "TSH" (which I take to be thyroid-stimulating hormone) were 6.7 and 4.6 mIU/L respectively and "FT4" (which I take to be free T4) was 8.5 and 11 pmol/L respectively. An accompanying text notes that the American Thyroid Association defines subclinical hypothyroidism in pregnancy as a TSH of between 2.5 and 10 mIU/L while free T4 remains at normal levels. The quoted reference levels for the three trimesters of pregnancy, to which treatment aims to bring TSH, however, are below the minimum of the range quoted above, being 0.03-2.5 mIU/L in the first trimester and 0.5-3.0 and 0.30-3.5 in the second and third semesters respectively. This makes it appear that Ms Ikram's problem was hyperthyroidism rather than hypothyroidism.
2. If that was the case, the treatment was successful. Tests later in the pregnancy done in Pakistan show TSH within the above reference ranges: a test of on 22 June 2016 yielded a result of 1.668 µIU/ml, which is within the (then) quoted reference range of 0.35-5.5, and a test on the same day for free T4 yielded a level of 0.86 ng/dl, which is just under the reference range of 0.898-1.76 and is accompanied by the note "slightly lower levels can be expected during pregnancy" (folios 66-67). The same tests on 9 September 2016 yielded results of 1.614 µIU/ml and 0.88 ng/dl (folios 69-70). It appears that Ms Ikram's thyroid condition was under control, at least up to that point. A test for anti-TPO on 26 February 2016, in Pakistan, which I take to be for anti-thyroid peroxidase antibodies, recorded <10 IU/ml, which is well within the reference value of <35 IU/ml.
3. A note by Dr Nasrullah Khan of Saidu Teaching Hospital in Pakistan, unsigned and undated (T1, folio 10), records that Ms Ikram suffered from hyperthyroidism, and that she was treated with anti-thyroid medication which might have had "negative impacts" on the health of the foetus.
4. While Ms Ikram's health was in a general sense outside Mr Ullah's control, it is indeed the case, as Mr Holcombe noted, that he was well aware of his wife's thyroid condition, and of the risks to her pregnancy from that condition, before he enrolled for the two units.
5. Mr Ullah ran into problems with his study in August 2016, as noted above. Mr Ullah acknowledged at the hearing that he had overlooked the requirement to submit some postings as his assignment. An exchange of emails with his teacher, Mr Gavin Austin (Ex A2), records Mr Austin's decision to award a zero rating for the assignment, despite Mr Ullah's pleadings and protestations. This exchange occurred on 4 and 5 September 2016. Mr Ullah admitted that he had not read the assessment information with sufficient care; it is clear that the failure to submit the assignment was not beyond his control. I am also not satisfied that a failure of this kind on the part of a student would be "unusual, uncommon or abnormal".
6. Mr Ullah included in his written application to the university for re-crediting of FEE-HELP a reference to the additional difficulties caused by his work as a contractor. He said that before Ms Ikram went back to Pakistan he was doing his best to care for her but "it became hard with time as I was a contractor and was only paid for hours I worked". This was evidently a factor in deciding to take his wife back to Pakistan where she could be supported by family. It is not obvious that Mr Ullah intended this to form part of a special circumstances claim. Nor is it apparent that it would be reasonable to regard Mr Ullah's employment circumstances as beyond his control, although he may well have had limited employment choices and have been compelled to take on work that was precarious in one way or another. And once again, this kind of limitation is not unusual or uncommon.
7. There is no doubt that Maira suffered a serious challenge to her health shortly after birth. A note at T8, folios 48-49, records that Maira was admitted to hospital on 16 October 2016 for neonatal jaundice with an "SBR" (which I take to be serum bilirubin) of 20 (I gather the usual units for measuring serum bilirubin are mg/dl). Maira was irradiated under ultraviolet light. The bilirubin level remained at 19 or more for five days, and reduced to 9 on the seventh day. Maira was then discharged. The note is signed by Dr Khan and dated 16 October 2016 (although as the note records discharge at 23 October the date must be the date of admission rather than of the record). The note mentioned above at T1 folio 10, also by Dr Khan, records again Maira's admission to hospital for jaundice, notes that the level rose above 22, and that after "high heat light treatment" for 72 hours mother and baby were kept under regular care.
8. I am satisfied that the neonatal jaundice suffered by Mr Ullah's daughter was outside his control; applying the Guidelines, it did not occur because of his action or inaction, and he was not responsible for it. And although neonatal jaundice is itself apparently a reasonably common problem in newborns, it is sufficiently uncommon in most people's lives to meet the requirement in the Guidelines that the event be uncommon or unusual.

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

1. While there is some confusion regarding whether Ms Ikram had an issue with hyper- or hypothyroidism, it does appear that the testing she underwent in Pakistan did not identify any thyroid-related problem. Her tests yielded results that were within the expected range, and there are no notes or annotations that suggest that any of her doctors thought her health was at risk. It is possible that she was medicated to bring her values within the normal range, and the medication put the foetus at risk; but the absence of any expression of concern from the months between February and September suggests that her health was not a major issue. There is no evidence pointing to a deterioration in her condition after the census date.
2. Mr Ullah's employment conditions changed significantly after the census date, in that on 24 August he returned to Pakistan, and was no longer able to work. But it is not clear that they could be said to have worsened, in that he was now supported by family and could give support to his wife during the latter stages of her pregnancy. It could be argued, however, that the change had its impact after the census date, and that it occurred after the census date, which is what the Act and the guidelines require.
3. It is plain that the occurrence of Maira's neonatal jaundice was after the census date.

Did these circumstances make it impracticable for Mr Ullah to complete his study requirements?

1. It should be clear from the above that only one of Mr Ullah's enumerated circumstances - Maira's neonatal jaundice - meets paragraphs (a) and (b) of subsection 104-30(1). Mr Ullah's employment situation was not unusual, and nor was his failure to submit an assignment; and there is no evidence that Ms Ikram's thyroid condition worsened or became manifest after the census date.
2. 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.
3. What might have had an impact was Maira's neonatal jaundice. It is clear, however, that by the time of that event Mr Ullah had already made an online withdrawal from the two units (T3, f 23). He did so on 10 September 2016, a few days after realising that he would receive a zero score for his first assignment in one of the units. Mr Ullah admitted at the hearing that he began thinking about withdrawal once he realised that he would have a very difficult task to make up the marks he had lost. It is clear from the evidence that he rapidly came to a decision to withdraw, and his newborn daughter's neonatal jaundice occurred after the decision rather than before it. That event therefore cannot contribute to the claim for special circumstances.
4. The Secretary referenced a large number of cases dealing with applications to re-credit FEE-HELP and HECS-HELP; but each of these cases turns on its particular facts, and no issue in interpreting the legislation arises in the present matter: the application of the Act is clear. I have not had recourse to the referenced cases except for the briefest survey. That applies also to Killen and Secretary, Department of Education and Training [2017] AATA 774, handed up by Mr Holcombe at the hearing.
5. Mr Ullah plans to build a school in Pakistan and appears to be dedicated to improving the lot of the children of his local part of Pakistan, which he described as remote and underprovided with infrastructure. That is an entirely laudable goal, and clearly his studies at USQ, if he continues, will provide him with a useful grounding for that purpose. It is plainly socially useful for Mr Ullah to succeed in his endeavour. But the present case requires that the law be applied to his circumstances as found from the evidence. On that basis, Mr Ullah does not satisfy the special circumstances test in paragraph 104-25(1)(c) of the Act and his FEE-HELP cannot be re-credited.

1. I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member.

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