Ellem and Department of Education, Training and Youth Affairs [2000] AATA 50 (1 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 50

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1172

GENERAL ADMINISTRATIVE DIVISION )

Re Justin Anthony ELLEM

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 1 February 2000

Place Sydney

Decision 1. The decision under review, being the decision of the Respondent dated 28 July 1998, is set aside. 2. The Tribunal will remit the matter to the Respondent, with the Direction that there are special circumstances to remit the whole of the debt of the Applicant, in the amount of $1,792, in respect of the Higher Education Contribution Scheme payment relating to his study at University of Newcastle in semester 1, 1998.

..............................................

M T Lewis,

Senior Member

CATCHWORDS

EDUCATION - Higher Education Contribution - application for remission of higher education contribution semester debt - Applicant offered place in Diploma of Policing Practice after census date - whether circumstances beyond the control of the Applicant - whether "special circumstances" exist

Higher Education Funding Act 1988 ss 106L, 106J

Re Moore and Secretary, Department of Employment, Education, Training and Youth Affairs AAT 9942

Re Perera and Secretary, Department of Employment, Education, Training and Youth Affairs AAT 12829

Re Regenspurger and Secretary, Department of Employment, Education, Training and Youth Affairs AAT 12355.

REASONS FOR DECISION

1 February 2000 Mrs M T Lewis, Senior Member

1. This is a review of a reconsideration decision of a delegate of the Secretary, Department of Employment, Education, Training and Youth Affairs, now known as the Department of Education, Training and Youth Affairs ("the Respondent") dated 28 July 1998. The delegate decided not to remit a debt in respect of Justin Anthony Ellem ("the Applicant") on the grounds that he was not prevented from withdrawing from his studies before the census date due to circumstances beyond his control. The Applicant lodged an application for review by this Tribunal on 8 September 1998, which was out of time. The Respondent did not oppose the Tribunal extending time for the lodgement of this application, and a Direction extending time for the lodgement of the Application to 1 September 1998 was made by the Tribunal.

2. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.

The following documents were tendered as evidence on behalf of the Applicant -

* Statement of Justin Ellem (exhibit A);

* Letter from Charles Sturt University (undated) (exhibit B);

* Letter from Workforce and Career Directorate, New South Wales Police Service, dated 14 December 1998 (exhibit C).

The Applicant gave oral evidence at the hearing. The Applicant's solicitor made written submissions at the conclusion of the hearing and the Respondent provided submissions in reply. The Applicant included two further documents that the Tribunal accepted as further evidence, viz. -

* Letter from Student Administration, Charles Sturt University, dated 23 June 1999 (exhibit D);

* Facsimile from Student Administration, Charles Sturt University, dated 16 July 1999 (exhibit E).

3. The Applicant's evidence was that he completed his Higher School Certificate ("HSC") studies in November 1997. He wished to pursue a career in forensic services in the New South Wales Police Service and in November 1997 he applied to enter the New South Wales Police Force. In addition to filling in application forms, the Applicant was required to undergo fitness and medical examinations and a Job Related Aptitude Test. At the time of that application, study for the Police Academy was undertaken internally at the Police Academy at Goulburn. Since then it has been replaced by a Constable's Education Program through Charles Sturt University. He said that at the time of his application he was not aware that the in-house training at Goulburn was changing. He understood that there were approximately three intakes a year to the Police Academy. He became aware during the two days of testing in relation to his application that there were approximately 800 applicants. He received no indication of his chance of being accepted. He understood subsequently that 250 applicants were accepted.

4. The Applicant said an officer of the NSW Police Service contacted him on 12 January 1998. He was advised that recruitment was being changed and study would be in conjunction with Charles Sturt University. He was told it would be six to twelve months before this commenced.

5. By late January the Applicant had received his HSC results and accepted an offer to undertake a Bachelor of Science degree at the University of Newcastle. He considered the course would assist him in entering some area of forensic services. He commenced the course in March 1998 - the beginning of semester 1. He took the option to defer payment of HECS amounting to $1,792. The census date in respect of the HECS payment was 31 March 1998.

6. On 23 April 1998 the Applicant received a letter from Charles Sturt University and the NSW Police Service, offering him a placement at the NSW Police Academy. He said that he considered his options for three or four days and ultimately he decided to accept that offer. He said that at that time he understood that the Forensic Service was run by the NSW Police Service and officers were employed by the Police Service. He did not find out until early in 1999 that the Forensic Service was becoming "civilianised". He explained that his chosen career was specifically in the area of "crime scene investigation". At the time of the hearing the Applicant was undertaking a Bachelor of Forensic Investigation degree at the Canberra Institute of Technology, which he said was a requirement to gain entry into forensic services of three major police services in Australia, including the New South Wales Police Service.

7. The Applicant said that if he rejected the offer he would have had to repeat all the tests and processing associated with his application, which he described as "lengthy and arduous". There was no guarantee that he would be accepted at the time of any later application (exhibit B).

8. The Diploma of Policing Practice at Charles Sturt University was a trimester course. It commenced operation on 18 May 1998, at the beginning of Trimester 2. The Applicant enrolled in Trimester 2 and Trimester 3 of the course, that is, from 18 May 1998 until 21 August 1998 and from 7 September 1998 until 11 December 1998 (exhibit E). The Applicant was required to pay HECS in respect of that course and he elected to defer payment of HECS. Charles Sturt University advised that in respect of that course students were required to pay the HECS payment and "upon complete payment of the HECS Liability debt, a full reimbursement of HECS expenses will be paid to students by the NSW Police Service" (exhibit D).

the legislation

9. Section 106L of the Higher Education Funding Act 1988 ("the Act") provides -

(1) The Secretary may, in writing, remit the whole or part of a person's HEC semester debt if:

(a) the person has not completed the course requirements for his or her course of study in respect of a semester during the semester or during the year in which the semester occurred; and

(b) the Secretary is satisfied that special circumstances apply to the person (see subsection (3)); and

(c) the person applies in writing to the Secretary for remission of the debt within 12 months after the person's withdrawal day in relation to a unit in the person's course of study for the semester (see subsection (3B)).

(2) .........

(3) For the purposes of this section, special circumstances, in relation to a person, include circumstances that the Secretary is satisfied:

(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 course of study for the semester or the study period (as the case requires); and

(c) make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs, or the units of study for which he or she was enrolled for the study period (as the case requires).

(3A) The Secretary may issue guidelines relating to circumstances in which the Secretary will be satisfied of a matter referred to in paragraph (3)(a), (b) or (c). A decision of the Secretary under subsection (1) or (2) must be in accordance with any such guidelines.

(3B) For the purposes of this section, a person's withdrawal day, in relation to a unit in a course of study for a semester, or a unit of study for a study period, is:

(a) if the person:

(i) has incurred an HEC semester debt for the course of study for the semester; and

(ii) withdraws his or her enrolment in respect of the semester for the unit of study; and

(iii) the institution at which the person was enrolled gives notice to the person that the withdrawal has taken effect;

the day specified by the institution in the notice as the day the withdrawal takes effect; or

(b), (c), (d) .......

10. The Guidelines are set out at T15. It is noted therein that -

Under subsection 106L(3A) of the Act the Secretary may issue guidelines outlining in what circumstances the Secretary will be satisfied that the matters in (a), (b) or (c) above are met. These guidelines are set out below. The Secretary can also be satisfied that special circumstances exist although they are not dealt within the guidelines.

GUIDELINES

Each application will be examined and determined on its merits. The Secretary will consider the person's claims together with independent documentary evidence which substantiates these claims. The Secretary may be satisfied that a person's circumstances:

(a) are beyond a 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. This situation must be unusual, uncommon or abnormal. A lack of knowledge or understanding of HECS .... Is not considered to be beyond a person's control.

(b) do not make their full impact on the person until on or after the census date for the course of study for the semester or the study period (as the case requires) if the person's circumstances occur:

(i) before the census date, but worsen after that day, or

(ii) before the census date, but the full effect or magnitude does not become apparent until on or after that day, or

(iii) on or after the census date.

(c) make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs or the units of study for which he or she was enrolled for the study period (as the case requires) if the person is unable to:

(i) 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

(ii) complete the required assessable work, or

(iii) sit the required examinations, or

(iv) complete any other course requirements because of their inability to meet (I), (ii) or (iii).

Special circumstances might arise from medical, family, personal, employment or course related reasons. In considering a person's application, the Secretary must be satisfied that the person has met the criteria outlined above in (a), (b) and (c).

submissions

11. Both parties agreed that it would not have been possible for the Applicant to continue his full-time study at University of Newcastle and also commence his full-time study at Charles Sturt University. Apart from geographical barriers, it is likely that university policy would preclude a student's enrolment in two separate full-time courses concurrently.

Applicant

12. It was submitted that the fact that the Applicant commenced a further course of study and incurred a further HECS debt immediately upon leaving the University of Newcastle were special circumstances within the meaning of s 106L(3) of the Act. In accordance with the guidelines issued by the Secretary, special circumstances may arise from employment or course related reasons.

13. It was submitted that the debt arose because of the unusual nature of the Applicant's policing course. This was a new course and due to the implementation of the program the first intake was not offered until 18 May 1998. It was submitted that had the course been in existence for some time, then intake into the course would have been about 25 January 1998. This was indeed the case in 1999. However, this was the first intake to the course, and one that was offered in conjunction with employment. The Applicant had no control over the starting date. He attempted to ascertain the commencement date prior to starting at University of Newcastle, to no avail.

14. It was submitted that the Tribunal should view these factors as special circumstances. The occurrence of this situation was beyond the Applicant's control, and he had done everything he could reasonably do in the circumstances. It was submitted that the change of police training from an in-house course at Goulburn to Charles Sturt University was "unusual and uncommon and abnormal" and it did not make its impact on the Applicant until after the census date. He could not have made the decision to withdraw from his course at University of Newcastle before 31 March 1998.

15. It was submitted that because the course at Charles Sturt University was late in commencing, it placed the Applicant at a disadvantage with regard to HECS requirements. It would be inequitable for him to be held liable for those factors.

16. Due to the unusual circumstances of the course commencing after the census date of the usual university year, the Commonwealth effectively can charge two HECS debts at the commencement of two courses within the same year. The Applicant's unusual circumstances are one-off and would not conceivably happen again in the future.

Respondent

17. The Respondent is not satisfied that special circumstances apply to the Applicant. It was submitted that while it may well have been unusual to the NSW Police Service that the Police Academy program was revamped in 1998 it was not part of the Applicant's circumstances which must be unusual. It merely meant that the Applicant had to choose between two options, one that was more attractive than the other, and in the breadth of human experience that was not unusual. It was submitted that this interpretation came from the terms of s 106L(3) itself. It must be the circumstances that link the person to the HECS debt and the course of study that are unusual, abnormal or special. The special circumstances relate to the University of Newcastle course, and not the NSW Police Force. It was also submitted that when there is an element of deliberation and choice between something to which one is committed and something which is more attractive, that is not something that properly could be described as being beyond one's control.

18. It was submitted for the Respondent that the Applicant is unable to meet the provisions of s 106L(a) and (c) of the Act. It was conceded for the Respondent that the Applicant was entitled to prefer to take the offer of study from Charles Sturt University because that was more suited to his career plans. It may well be the case that it would have been unreasonable to expect him to turn down the Police Academy job. It was submitted, however, that in the circumstances it was possible for the Applicant to take one of a number of courses of action which would not have resulted in withdrawal from the University of Newcastle course and which could also have led to his employment in his chosen field. The issue is whether, when he made his choice, being a choice after the census date, it was beyond his control and made it impracticable for him to complete the University of Newcastle course. It was submitted that the Applicant was fully aware that by withdrawing from his course in April he was going to incur a HECS debt.

19. The Applicant considered his options for some three or four days, and then decided to accept the Police Academy offer. The Respondent submitted that this could not be called "beyond his control". It was adverse to his interests but it was eminently within his control. It was submitted that an attractive offer that is temporarily inconsistent with the Applicant's current circumstances is not "impracticability". It was not impracticable for the Applicant to continue with the obligations he had undertaken or to bear the financial cost of cutting those short in order to access what was a much more attractive offer for him. Although entry to the Police Academy course was obviously competitive, this was a "vagary of life". The Respondent submitted that the Applicant's decision to withdraw from his studies at the University of Newcastle was neither impracticable nor beyond his control.

20. The Tribunal was referred to the following cases: Re Moore and Secretary, Department of Employment, Education, Training and Youth Affairs AAT 9942; Re Perera and Secretary, Department of Employment, Education, Training and Youth Affairs AAT 12829; and Re Regenspurger and Secretary, Department of Employment, Education, Training and Youth Affairs AAT 12355. However, each of those decisions could be distinguished from the matter now before the Tribunal. The Respondent submitted on the basis of those decisions, where there is a deliberate choice made by a person to withdraw from a course it is not an unreasonable consequence to have to bear one's HECS debt. It was also submitted that the only decisions in which the Tribunal has found that the applicant did not have to pay the HECS debt was when it was found unreasonable to expect a person to choose not to accept whatever circumstances that precluded them from continuing their education.

21. The Tribunal was referred to a letter from the NSW Police Service to the Applicant dated 7 January 1998 (T3, p19). The letter stated that further information about the Constables' Education Program would be available about March 1998, and in the meantime he would receive an automatic mail-out of literature, as it became available. It was submitted, therefore, that it was not reasonable for the Applicant to have the belief that it would be six to twelve months before the Police Service was able to finalise their recruitment procedures.

22. It was submitted that pursuant to s 106J(2) of the Act, the Applicant incurred a HECS debt for each of the University of Newcastle and Charles Sturt University courses because he was enrolled in both courses on the census date applicable to each course, being 31 March 1998 and 14 days after 18 May 1998 respectively. It was submitted that there was no necessary inequity in this outcome, nor does it constitute special circumstances within the meaning of s 106L(3) of the Act for the following reasons -

(i) the Applicant's late withdrawal from the University of Newcastle course had the effect of preventing that place being taken by another student;

(ii) costs would have been incurred by the University of Newcastle by reason of the Applicant's partial attendance and late withdrawal;

(iii) in respect of the Applicant personally, his evidence is that his employer, and not he, will pay the HECS debt levied for the course at Charles Sturt University;

(iv) the decision of the Applicant to enrol in the Charles Sturt University course was taken after due deliberation and he knew or should have known that HECS was attracted to both courses;

(v) that Charles Sturt University in 1999 changed the commencement date for the course to correspondent with a standard semester-based course does not establish "special circumstances" and does not alter the character of the carefully deliberated decision of the Applicant to enrol in that course in 1998 such that the decision was thereby "beyond the control" of the Applicant. The evidence was to the contrary, in that the Applicant consciously chose to enrol in the Charles Sturt University course because it was better suited to his career aspirations;

(vi) the necessary effect of the Act cannot properly be considered "special circumstances".

23. It was submitted for the Respondent that higher education institutions are autonomous bodies over which the Respondent has no authority to determine when or how courses are conducted. The Respondent determined only the relevant census date. At the time when the Applicant decided to enrol at the Charles Sturt University course he should have been aware that notification of that position would come after the census date for the University of Newcastle course.

consideration of evidence and findings of fact

24. The Applicant impressed the Tribunal as being very specifically focussed on his career in crime scene investigation, even to a point where, when he found out that forensic services were becoming "civilianised" he decided to change his course again in 1999 to enable his specific interests to be addressed directly. The Tribunal finds that, given the Applicant's single-mindedness about his career interests, if he continued his Bachelor of Science course at the University of Newcastle merely for the purpose of not incurring a HECS debt, he would have taken a number of risks. Such action would have caused him to miss the 1998 intake for the NSW Police Service in May. Moreover, with a history of 250 offers out of 800 applications and in the absence of any policy which allowed successful applicants to defer the commencement of their course, he was taking a material risk of not achieving entry to the Constable Training Program in the future. There was no evidence before the Tribunal to indicate that the Applicant's perceptions about entry to the Constable Training Program and crime scene investigation work was not correct, and therefore the Tribunal accepts the Applicant's evidence on this.

25. The Applicant was at risk of not fulfilling his career goal if he had decided to continue his course at University of Newcastle, instead of accepting the offer from Charles Sturt University., The Tribunal finds that this made it impracticable for the Applicant to complete the University of Newcastle course for semester 1 1998. The Applicant had no control over the delay in the commencement of the initial course at Charles Sturt University, nor did he have any control over the fact that the NSW Police Service was changing the nature of its constable education from an in-service course at the Police Academy. The Tribunal does not accept the suggestion that actions of the NSW Police Service are not material to this decision. Those actions obviously had a major personal impact on the Applicant and they are, in the words of s 106L(3) of the Act, circumstances in relation to the Applicant.

26. This matter is significantly different from those cases where a student decides to make a course change, or to notify of the withdrawal of a subject, after the census date, notwithstanding their opportunity to do so before the census date. The vast majority of course changes can be negotiated and completed before the census date and within the requirements of the Act, and indeed that is a purpose of the census date. The Tribunal notes the unlikelihood of creating a precedent on the facts in this case. The facts are very unique, and at best would apply only to the Applicant and perhaps some of his fellow students in the course at Charles Sturt University in 1998.

27. The Tribunal finds that the Applicant's circumstances were beyond his control. Although it was in his control to make the decision he made, there were other circumstances involved which related to the late commencement of the Charles Sturt University course and the change in the NSW Police Service Constable Education Program which were not in the Applicant's control and which contributed to the totality of the circumstances which caused him to make the decision to withdraw from his course after the census date. In applying the Secretary's Guidelines (T15) the Tribunal finds that this is a situation which a reasonable person would consider to be not due to the Applicant's action or inaction, either directly or indirectly, and for which he was not responsible. The Tribunal finds that the situation was unusual, uncommon and abnormal.

28. The Tribunal also finds that the circumstances did not make their full impact on the Applicant until after the census date. He did not know until after the census date that the Constable Education Program was going to be available before 6 to 12 months. The Applicant received a letter from the NSW Police Service (T3, p19) indicating that further information will be available about March 1998. He then received a telephone call from the Police Service, informing him that it may be 6 or 12 months before the course would begin. Indeed, on his evidence, which the Tribunal accepts, the first information that the Applicant received was the offer of the place at Charles Sturt University dated 23 April 1998 (T3, p21). While he had hoped that an offer would be made for the Constable Education Program, the Tribunal finds that there is no reasonable action that he could have taken prior to the census date. The alternative not to pursue any course of study at the University of Newcastle while running the risk of never getting an offer from the NSW Police Service, is in the Tribunal's view unreasonable.

29. None of the previous Tribunal decisions to which the Respondent referred were similar fact situations, and were not helpful to the Tribunal in coming to a decision in this matter. This decision, as with so many of these "special circumstances" matters, turn on their own facts.

30. For the reasons outlined above, the Tribunal finds that the Applicant has met the criteria outlined in (a), (b) and (c) of the Guidelines for the remission of his HECS debt for study commenced by him at the University of Newcastle in semester 1 1998. The Tribunal notes in the Secretary's Guidelines that the Secretary (and the Tribunal standing in the shoes of the Secretary) can also be satisfied special circumstances exist although they are not dealt within the guidelines. The Tribunal finds that even if there were parts of the Guidelines that the Applicant did not meet, on consideration of the totality of the Applicant's circumstances, the Applicant meets the terms of s 106L(3) of the Act in establishing that special circumstances exist. These circumstances warrant remitting the whole of his HECS debt in the amount of $1,792. The decision under review is therefore set aside.

31. In making this decision, the Tribunal did not find it necessary to consider the issue of the co-existence of two HECS debts being payable by or on behalf of the Applicant for part of semester 1 1998, because of the Applicant changing his course.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis,

Senior Member.

Signed: .....................................................................................

Associate

Dates of Hearing 21 June 1999

Date of Decision 1 February 2000

Solicitor for Applicant Mr M O'Callaghan

Orchiston-Ranzetta-Finney Solicitors

Solicitor for Respondent Ms R Cheetam

Australian Government Solicitor