Kyriakopoulos and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 169 (17 March 2009)

Last Updated: 17 March 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 169

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/2703

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CONSTANTINOS KYRIAKOPOULOS

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Senior Member L Hastwell

Date 17 March 2009

Place Adelaide

Decision

The Tribunal affirms the decision under review.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Student Learning Entitlement – failure to withdraw from subject prior to census date – special circumstances considered –objection to course content – hypertension – inaction by student – special circumstances not established – decision affirmed

Higher Education Support Act 2003 ss 79-1, 79-5

Student Learning Entitlement Guidelines, Chapter 5

REASONS FOR DECISION

17 March 2009

Senior Member L Hastwell

1. Constantinos Kyriakopoulos was enrolled at Griffith University (the University) in 2007 in a Bachelor of Oral Health and Dental Technology degree. One of his first semester units was psychology (the Unit). He was issued with a fail grade for the Unit.
2. A fail grade had the consequence that his Student Learning Entitlement (SLE) was reduced by the number of points allocated to the Unit.
3. If a student wishes to withdraw from a subject/unit they must do so before the census date for the Unit. The first semester for the purposes of Mr Kyriakopoulos’ study commenced on 26 February 2007 and the census date was 25 March 2007.
4. Mr Kyriakopoulos did not withdraw from the Unit before the census date.
5. He subsequently completed a request to withdraw from the Unit after the census date due to special circumstances. That request was dated 18 August 2007, but was not submitted to the University until 18 February 2008.
6. His request was rejected in a determination dated 18 March 2008. He challenged that decision and upon reconsideration, the decision was affirmed on 20 May 2008. The University found that special circumstances had not been established by Mr Kyriakopoulos within the meaning of the relevant legislation and guidelines.
   
7. Pursuant to the Higher Education Support Act 2003, Mr Kyriakopoulos has applied to this Tribunal for a review of that decision.

RELEVANT LEGISLATION

8. The Higher Education Support Act 2003 (the Act) is the relevant legislation in this case.
9. Section 79-1 of the Act provides:

“79-1 Main case of re-crediting a person’s SLE
(1) A higher education provider must, on the *Secretary’s behalf, re-credit a person’s *SLE with an amount equal to the *EFTSL value of a unit of study if:
(a) the person has been enrolled in the unit with the provider; and
(aa) the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; and
(ab) the unit does not wholly consist of *work experience in industry; 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) the provider is satisfied that special circumstances apply to the person (see section 79-5); and
(d) the person applies in writing to the provider for re-crediting of the SLE; and
(e) either:
(i) the application is made before the end of the application period under section 79-10; 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.
...”

10. Section 79-5 of the Act provides:

“79-5 Special circumstances
(1) For the purposes of paragraph 79-1(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:
(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 in question; 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 Student Learning Entitlement 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.”

11. Guidelines have been issued to assist the decision-maker. Chapter 5 of the Student Learning Entitlement Guidelines (the Guidelines) deals with special circumstances and provides as follows:

“CHAPTER 5 SPECIAL CIRCUMSTANCES
5.1 PURPOSE
5.1.1 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 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
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.
...”

ISSUES

12. The issue for determination by the Tribunal is whether special circumstances exist such that Mr Kyriakopoulos should have his SLE re-credited to him with respect to the Unit.

THE HEARING

13. Mr Kyriakopoulos presented his case and gave evidence to the Tribunal. He also provided the Tribunal with some additional information, which where relevant will be referred to.
14. The documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence as Exhibit R1.
15. Mr Kyriakopoulos told the Tribunal that he had enrolled for the first time as a university student in 2007. He had enrolled at the University and he was confident that although he enrolled on-line, he was assisted in that enrolment by a student advisor.
16. One of his first term subjects was “Introduction to Individual and Social Psychology”.
17. He gave evidence as to what he considered the particular special circumstances were in his case that would justify the Tribunal exercising the power under the Act to allow withdrawal from the Unit.
18. He did not attend orientation week. He had previously worked as a dental technician for 22 years and he was a mature age first time university student.
19. He told the Tribunal that he did not read the fine print when he was enrolling and was unaware of the census date by which he must withdraw from a subject if he wished to avoid penalty. He was not aware at the time of enrolment and, it appears, throughout the census period that if he passed the census date without withdrawal, then he could not withdraw from the subject without incurring penalty except on the ground of special circumstances.
20. He had difficulty with the Unit and he claims to have found the course content distressing and in his words “unacceptable”. He referred the Tribunal to a letter that he had sent on 25 March 2008 to the University in which he set out specifically his objections to the course content (Exhibit A1). He considered that there was “vulgar and preposterous” information in the course. That letter provides detail of his objections which largely related to the Freudian content in the course.
21. He is convinced that he told the Program Convenor, Jane Evans, in May 2007 that the subject was “stressing him out”.
22. He drew the Tribunal’s attention to an email that he had sent to her on 5 May 2007 (Exhibit A2) in which he expressed his negative views about the Unit. This was in response to an enquiry from Ms Evans as to how he was going. In that same email she pointed out to him that he had not passed the mid semester.
23. In his response to her he had commented “I have made the executive decision to drop Psychology”.
24. He advised the Tribunal that his health was not particularly good in the first semester of 2007 and that it was not good before commencing University. He suffers from hypertension and referred to himself as “a dead man walking”. He has been seeing doctors about hypertension for years and he said that he manages his hypertension by avoiding stress, by exercising and with medication.
25. He provided the Tribunal with a letter from Dr Mackay dated 3 November 2008 (Exhibit A3) which confirmed that he had first consulted Dr Mackay in July 2007 and that his health problems included persistent hypertension. A graph attached to that report showed that Mr Kyriakopoulos’ blood pressure was persistently high.
26. When questioned as to why he had prepared his application to withdraw from the subject in August 2007, but had not lodged it until May 2008, he responded that he was in no frame of mind to lodge the document. He has now returned to Adelaide and he is currently not studying. He does not feel it is fair that he should have to pay for the subject as he was unaware of the census date and had genuine difficulties with the subject and with his health.

OTHER RELEVANT EVIDENCE

27. A print out of Mr Kyriakopoulos’ log-ins for the purposes of his enrolment is at T19.
28. In addition the Tribunal had regard to:
    • a statement of Cathy McGrath, the Director of Student Administration at Griffith University dated 16 January 2009 (Exhibit R2);
    • a statement of Jane Evans, Senior Lecturer and Program Convenor - Dental Technology in the School of Dentistry and Oral Health at Griffith University dated 27 January 2009 (Exhibit R3); and
    • a statement of Barbara Noller, Group Administrative Officer for Griffith Health at Griffith University dated 16 January 2009 (Exhibit R4).
29. The Tribunal notes that Ms Evans emailed Mr Kyriakopoulos in July 2007 commenting that he had not passed all his courses in the first semester and requesting that he make a time to discuss his options. The text of this email is set out in paragraph 11 of her statement (Exhibit R3). His response is at T12. For the first time, he raises the issue of hypertension. He comments in that email as follows:

“...
I have walked out of Psychology lectures because it has stressed and upset me, to a point that I could sense that my blood pressure was rising ...”

30. Ms Evans and a colleague subsequently met with Mr Kyriakopoulos two days later to discuss the situation. At that meeting he was provided with information about the various learning services available at the University to assist him with his studies and he was encouraged to make contact with those services. An amended course program was provided to him in early August.
31. Ms Evans had a further meeting with Mr Kyriakopoulos in October 2007 when there was a discussion about reducing his work load and he was approved to continue his course on a part-time basis for semester 2 of 2007. He was told that withdrawal at that stage would incur the full costs of any course from which he sought withdrawal. He indicated that he had had discussions with the Student Administration unit and that he was aware of the forms required to be completed by him if he wished to seek withdrawal.
32. A request, dated August 2007, to withdraw from the Unit was received by the Student Administration unit at the University on 18 February 2008.

FINDINGS OF FACT

33. The Tribunal makes the following findings of fact based on all the evidence:
    • Mr Kyriakopoulos enrolled in a Bachelor of Oral Health and Dental Technology degree at the University on-line on 13 February 2007.
    • It is possible he was assisted with the enrolment. He did not read the fine print associated with enrolment.
    • When he enrolled, he completed the HECS status, eCAF and enrolment declaration pages on that day.
    • The HECS screen advised him that he must read the Information for Commonwealth supported students’ booklet before completing the screens and there is a hyper-link to an on-line copy of that booklet on the HECS page. The HECS screen also says:

“Your agreement to the information on the following screens means you have read the booklet, understood and agreed to your obligations as a Commonwealth supported student.”

• Mr Kyriakopoulos enrolled as a Commonwealth supported student in 2007 in the Unit.
• Mr Kyriakopoulos completed an enrolment declaration on the same date. The first paragraph of that declaration states that he had read the information for Commonwealth supported students and was aware of his obligations. It also contains a statement that he understood that his debt with the Commonwealth would remain if he withdrew or cancelled his enrolment after the census date, but that his debt may be removed by the University in special circumstances.
• As part of that declaration, he also acknowledged that while enrolled at the University he was subject to the statutes, rules and policies of the University.
• The particular policy that dealt with academic penalties at the time of his enrolment and when he withdrew was the Student Administration Policy.
• Section 7 of the Student Administration Policy as it stood at February 2007 dealt with change of enrolment. Section 7.2 dealt with a census date and set out the consequences if a student was still enrolled in a course on the census date. The consequences were confirmed liability for the tuition fee or any other fee or charge applicable under the fees and charges policy and if the student was a Commonwealth supported student, his or her SLE is reduced by the amount equal to the Equivalent Full-time Student Load (EFTSL) value of the course.
• Section 7.3 of the Student Administration Policy sets out how to withdraw from the course and the consequences of non-withdrawal.
• Mr Kyriakopoulos did not withdraw by the census date.
• On 3 May 2007 the Program Convenor, Jane Evans, emailed Mr Kyriakopoulos to enquire as to his progress and to advise him that he had failed the mid semester.
• His response was to email her on 5 May 2007 to say that he had made the decision to “drop Psychology”.
• The email of 5 May 2007 did not take affect as a withdrawal from the Unit in accordance with the rules.
• Mr Kyriakopoulos complained about the unit content in July 2007 after failing the unit.
• Mr Kyriakopoulos appears not to have consulted a doctor about his high blood pressure in the first half of 2007.
• He sought medical treatment from the Griffith University Health Service in July 2007.
• Mr Kyriakopoulos does suffer from hypertension from time to time and he did have high blood pressure in the latter half of 2007. This condition is controlled with medication and there is no evidence that this condition was disabling him in any way in the first half of 2007.
• In August 2007, Mr Kyriakopoulos prepared a request to withdraw from the unit. He did not submit that to the University until February 2008.
• Mr Kyriakopoulos had a further meeting with Ms Evans in October 2007. He gained approval to study part-time for the balance of that semester.

CONSIDERATION AND APPLICATION OF THE LAW

34. Mr Kyriakopoulos does not dispute that he failed to withdraw from the Unit prior to the census date and he pleads a combination of ignorance and poor health as being the reasons for his failure to withdraw prior to the census date.
35. Mr Kyriakopoulos does not dispute that the higher education provider was entitled to debit his SLE in this instance because of his failure to withdraw prior to this census date. He also does not dispute that his debt to the Commonwealth for that Unit remains because of his failure to withdraw before the census date. Nevertheless, he argues that the special circumstances provisions set out in s 79-5 of the Act are satisfied in this case and that he should be re-credited with his SLE and should not be liable for the debt associated with the subject.
36. Special circumstances can be established under s 79-5 of the Act if:

(a) they are beyond that person’s control; and

(b) do not make their full impact on the person until 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 during the period during which the person undertook, or was to undertake, the unit.

37. The Act refers to the Guidelines which specify circumstances in which the provider will be satisfied of the matters referred to in s 79-5. The Tribunal must have regard to the Guidelines (supra paragraph 11), when considering this matter.
38. The two special circumstances put forward by Mr Kyriakopoulos for consideration by the Tribunal are the course content and his health issues.
39. Dealing first with the issue of course content, the fact that his first objection to the course on the grounds of content was as a direct response to an email from his Program Convenor pointing out that he had not passed the mid semester leaves the Tribunal sceptical as to the genuineness of his objection to content. His more detailed objection was not made until March 2008, many months after the end of the semester in which the Unit was taught.
40. It is difficult to see that Mr Kyriakopoulos can argue that the situation was beyond his control. If he did not like the course content, he had every opportunity to raise the issue with the Program Convenor at the time. His detailed objection only emerges after he had failed the course.
41. He was able to make an adult decision to withdraw from the Unit prior to the census date if he found the content distressing, but he did not do so.
42. He has not produced any evidence that there were any other circumstances that may have prevented him from approaching the Program Convenor or the Student Administration unit to attempt withdrawal as soon as the course content became a concern for him, if in fact it ever did present that problem for him.
43. Even if the supposed course content that offended him was not taught until after the census date, he still cannot claim that it was impracticable to complete the Unit. No medical evidence or other evidence was produced that would satisfy the Tribunal that Mr Kyriakopoulos could not complete the course, despite his objection to aspects of its content.
44. Mr Kyriakopoulos did not raise his health as being as issue at all in the first half of 2007. He first raised the issue of hypertension on 24 July 2007, saying that this was why he was unable to undertake psychology. It would appear that it was only in July 2007 that he first consulted Dr Mackay and there is no evidence that this condition caused any significant effect on him in the first half of the year and it is interesting to note that it appears he sought no medical treatment for the condition prior to mid 2007.
45. The letter of Dr Mackay dated 3 November 2008 (Exhibit A3) does not suggest that there were circumstances happening in the first half of 2007 that were beyond Mr Kyriakopoulos’ control or that there were circumstances that did not make their full impact until after 25 March 2007.
46. Hypertension is a common condition and treatable. Although the Tribunal accepts that Mr Kyriakopoulos suffers from it, there is nothing in the medical evidence he has produced which would support his contention that he failed to withdraw from the subject due to circumstances beyond his control related to his poor health in the first half of 2007.
47. The Tribunal formed the view that Mr Kyriakopoulos struggled with the workload, being a first time student after many years in the workforce. It appears he was fairly disorganised and unaware of the consequences of non withdrawal prior to the census date. When he realised that he had failed the subject he searched for excuses to justify a late withdrawal date.
48. Mr Kyriakopoulos is the author of his own problems. If he failed to properly read the fine print when enrolling for the course and was unaware of the need to withdraw from the subject prior to the census date, then he must accept responsibility for the consequences.
49. Having considered all the available evidence, the Tribunal is satisfied that special circumstances, within the meaning of the Act, have not been made out in this case.
50. In the circumstances, the Tribunal affirms the decision under review.
    

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

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

Associate

Date of Hearing 20 February 2009

Date of Decision 17 March 2009

Advocate for the Applicant Self-represented

Counsel for the Respondent Ms V Donaghy

Solicitor for the Respondent Minter Ellison