Kagan and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 409 (3 June 2010)

Last Updated: 4 June 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 409

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/6155

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SAMUEL DAVID KAGAN

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

G. D. Friedman, Senior Member

Date 3 June 2010

Place Melbourne

Decision

The Tribunal affirms the decision under review.

................[signed].....................
Senior Member

HIGHER EDUCATION - student enrolled for full-time course – re-enrolment – whether re-enrolment in error – enrolment in another course – whether course transfer – Student Learning Entitlements – whether grounds to re-credit entitlements – special circumstances – Ministerial Guidelines

Administrative Appeals Tribunal Act 1975 s 34J

Higher Education Support Act 2003 ss 3-1, 70-1, 76-1, 79-1, 79-5, 238-10

REASONS FOR DECISION

3 June 2010

G. D. Friedman, Senior Member

1. Samuel Kagan commenced a Bachelor of Arts (Commerce/International Studies) course at Deakin University in 2007. In July 2008 he decided to defer the course in Semester 2 of 2008 and to enrol in a Property and Real Estate course at Deakin commencing in 2009, which he arranged through the Victorian Tertiary Admissions Centre (VTAC). According to Deakin’s records he re-enrolled for Trimester 3 of 2008 in Commerce/International Studies, and on 12 October 2009 a delegate of the respondent refused to refund his Student Learning Entitlement (SLE) on the basis that there was no attempt to withdraw from the course and that special circumstances did not apply in his case. Mr Kagan claims that he transferred courses in accordance with appropriate procedures and his SLE for the Commerce/International Studies subjects should have been re-credited to him.
2. With the consent of the parties the Tribunal has carried out its review under s 34J of the Administrative Appeals Tribunal Act 1975 without holding a hearing.

LEGISLATION AND MINISTERIAL GUIDELINES

3. Section 3-1 of Higher Education Support Act 2003 (the Act) sets out the regime for financial support for higher education. Section 70-1 states that a person starts out with an SLE equivalent to seven years of full-time study. This reduces as the person undertakes units of study. Section 238-10 of the Act provides for Student Learning Entitlement Guidelines to be issued by the Minister (the Guidelines).
4. Section 76-1 of the Act describes the process by which a person’s SLE is reduced:

(1) A person’s SLE is reduced if:
(a) at the end of the census date for a unit of study with a higher education provider, the person is enrolled in the unit; and
(b) the person is enrolled in the unit as part of a course of study...; and
(c) the person is a Commonwealth supported student in relation to the unit; and
(d) the person has, on or before the census date, completed, signed and given to an appropriate officer of the provider a request for Commonwealth assistance in relation to:
(i) the unit; or
(ii) where the course of study of which the unit forms a part is undertaken with the provider – the course of study.
(2) ...
(3) The reduction takes effect immediately after the census date for the unit of study.
...

5. Division 79 of the Act sets out the circumstances in which a person’s SLE can be re-credited. The relevant sections are:

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 ... if:
(a) the person has been enrolled in the unit with the provider; 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
...
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.
...

6. Section 79-5(2) requires the Tribunal to make its decision in accordance with the Guidelines. The Guidelines provide the following directions on the meaning of special circumstances in the Act:

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.

ISSUE

7. The issue for the Tribunal is whether there are special circumstances applying to Mr Kagan that would require the re-crediting of the SLE for the Commerce/International Studies subjects in which Mr Kagan was enrolled at Deakin for Trimester 3 of 2008. This involves consideration of the following questions:
   • Were there circumstances beyond Mr Kagan’s control? If so:
   • Did the circumstances not make their full impact on Mr Kagan until on or after the census date for the unit of study in question? If so:
   • Did the circumstances make it impracticable for Mr Kagan to complete the requirements for the unit during the period during which Mr Kagan undertook, or was to undertake, the unit?

WERE THE CIRCUMSTANCES BEYOND MR KAGAN’S CONTROL?

8. In documents before the Tribunal Mr Kagan stated that the circumstances were beyond his control and that he mistakenly re-enrolled in two units for Trimester 3 of 2008. He explained that he had no intention of studying Commerce/International Studies in Trimester 3 of 2008 as he was planning to travel overseas from 23 December 2008 until 3 February 2009, and had considered applying for a transfer to a Bachelor of Property and Real Estate course at Deakin through VTAC. He said that for these reasons on 25 June 2008 he lodged an Enrolment Details Variation form with Deakin in which he sought to intermit (seek leave of absence from) his course in Semester 2 of 2008, with the intention of returning to study in Semester 1 of 2009. This application was successful.
9. On 10 September 2008 Mr Kagan was sent a letter from Deakin headed Re-enrolment notification for 2009, which was a standard letter sent to all students reminding them to enrol in their units for 2009 in their chosen course of study. The letter noted that ...If you intend to apply for a course transfer, you must re-enrol in your current course in order to secure your place at the University. Trimester 3 of 2008 commenced on 10 November 2008. On 12 November 2008 Mr Kagan was sent a follow-up letter from Deakin as he had not re-enrolled for 2009 and was informed that he had ...until midnight on 30 November 2008 to re-enrol without penalty. 30 November 2008 was the census date for the units in question.
10. In a statement dated 30 April 2010 Ms M. Jackowski, Student Complaints Officer at Deakin, said that Deakin has no record of Mr Kagan making enquiries about discontinuing his Commerce/International Studies course following receipt of the letters, and he was still enrolled in that course at the time both letters were sent. She stated that as he did not take any action to discontinue the course, he was required to re-enrol for 2009.
11. Ms Jackowski explained that at Deakin each trimester runs for 12 weeks and that study in Trimester 3 is not compulsory. Consequently students enrolled in the Commerce/International Studies course cannot apply to intermit Trimester 3 unless they have previously enrolled for that Trimester. She said that on 25 June 2008 Mr Kagan successfully sought to intermit his studies for Trimester 2 of 2008 (21 July 2008 to 28 October 2008), and that this is reflected on the transcript of his academic record. He was free to enrol in subjects for Trimester 3 of 2008 if he wished.
12. On 20 November 2008 Mr Kagan logged into his Student Connect Online Account and enrolled in MAE101 Economic Principles and MMM132 Management in the Commerce/International Studies course for Trimester 3 of 2008. He also updated the emergency contact details and listed his father as the contact.
13. Mr Kagan stated that in January 2009 while overseas he was notified by VTAC that he had been accepted into the Property and Real Estate course, for which he had made application in the second half of 2008. He returned to Australia on 3 February 2009 and on 6 February 2009 he discontinued his Commerce/International Studies course. Trimester 3 of 2008 concluded on 20 February 2009. Mr Kagan said that he only became aware of a problem when he received notification from the Australian Taxation Office in June 2009 that he had incurred a debt of $2,124.00 for the two units in the Commerce/International Studies course for Trimester 3 of 2008.
14. In a letter to Deakin dated 8 November 2009 Mr Kagan explained that on 20 November 2008 he did not re-enrol in the units in the Commerce/International Studies course so there was no need to withdraw from the units, and he had merely notified Deakin of a change in his emergency contact details. He stated that he could not understand why he was enrolled in the units and that ...at no time did I enrol or mean to enrol in the 3rd trimester, especially as I was already well on the way to arranging my overseas trip, and had changed my course entirely to Property and Real Estate.
15. In a letter to the Tribunal dated 2 April 2010 Mr Kagan’s father stated that Mr Kagan had been treated harshly and unjustly:

In order to comply with the letters [dated 10 September 2008 and 12 November 2008], and to confirm his intention to study in 2009, he appears to have re-enrolled in his current course on 20th November 2008. It appears, if he did re-enrol, that he did so in order to protect his place in Deakin for 2009 (knowing that he had previously successfully deferred until 2009).
If this is the correct summary of the facts and Samuel incorrectly re-enrolled into his old course, pressured by the strong language in the Deakin letters, then I submit that it is an error that is excusable.

16. To be satisfied that Mr Kagan’s circumstances are beyond his control, the Tribunal must be satisfied that a reasonable person would consider that the circumstances in which he found himself did not arise due to his actions or inactions, either direct or indirect (5.5.1 of the Guidelines), and that the situation is unusual, uncommon or abnormal (5.5.5 of the Guidelines).
17. The Tribunal accepts that Mr Kagan was accepted into a Property and Real Estate course at Deakin through VTAC, which is an independent admission process that is separate from Deakin’s admission procedures. Mr Kagan did not complete a Deakin internal course transfer application, so he enrolled for a new course and did not transfer courses. There is no record of Mr Kagan suggesting to Deakin that he did not wish to continue the Commerce/International Studies course in 2009 or attempting to discontinue the course in 2008, and it was not until 6 February 2009 that he discontinued the course. Although he claimed that he did not wish to study in Trimester 3 of 2008, by his own admission through his father’s correspondence dated 2 April 2010 he enrolled in two units in the Commerce/International Studies course on 20 November 2008. As part of the online enrolment process, a student is required to acknowledge a declaration:

I acknowledge that I have a responsibility to seek course advice prior to varying my enrolment or re-enrolling in future years.
...
I agree to pay all fees and charges arising from this enrolment.

18. The Tribunal finds that Mr Kagan agreed to the declaration and carried out the enrolment, and that a reasonable person would conclude that prior to enrolling in units in a course of study a student would accept responsibility for ensuring that the enrolment was correct. The Tribunal finds that he failed to make reasonable or diligent enquiries about his circumstances or to seek assistance from Deakin staff before enrolling for Trimester 3 of 2008. Further, even if the enrolment was made in error, this was the result of Mr Kagan’s actions or inactions in failing to ensure that he was informed adequately of his options because the correspondence from Deakin included details of assistance available from Enrolment Officers and Customer Service. There was no error by Deakin.
19. At the time of completing the Enrolment Details Variation form on 23 June 2008 Mr Kagan was not enrolled in any units for Trimester 3 of 2008, so he could not intermit this period. The Tribunal finds that completion of the form resulted in Mr Kagan being intermitted for Trimester 2 only. He failed to take responsibility for ensuring that his enrolment was correct.
20. The Tribunal takes into account that the letter to Mr Kagan dated 10 September was a standard letter to all students encouraging them to re-enrol for 2009. The letter does not state that students must enrol for Trimester 3 of 2008, as this was not compulsory. Similarly, the letter to Mr Kagan dated 12 November 2008 provided instructions for students who wished to discontinue their current course. The Tribunal finds that the letter was sent as a reminder because Mr Kagan had failed to act on the letter of 10 September 2008. The Tribunal does not accept the assertion by Mr Kagan’s father that the language in the letters was strong or that Mr Kagan was pressured into enrolling incorrectly for Trimester 3 of 2008.
21. For these reasons the Tribunal is satisfied that a reasonable person would consider that the circumstances in which Mr Kagan found himself arose due to his actions or inactions, either direct or indirect, by failing to accept responsibility for following the correct procedures for enrolment or discontinuation of a course of study (5.5.1 of the Guidelines). Similarly, the Tribunal considers that it is not unusual, uncommon or abnormal for a university to send letters to students explaining that they should enrol in units for the next academic year, or for a student to incur an SLE debt if he or she enrols in units and fails to attend classes or fails to inform the university of an intention to discontinue the course (5.5.5 of the Guidelines).
22. Consequently the Tribunal finds that the circumstances were not beyond Mr Kagan’s control, and he is not eligible for a re-credit of SLE. There is no necessity for the Tribunal to consider whether the circumstances made their full impact on Mr Kagan until on or after the census date for the unit of study in question; or whether the circumstances made it impracticable for Mr Kagan to complete the requirements for the unit during the period during which he undertook, or was to undertake, the unit.

DECISION

23. The Tribunal affirms the decision under review.

I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision of

G.D. Friedman, Senior Member.

Signed: ........................[signed]..........................................

Associate Grace Horzitski

Date of decision: 3 June 2010

Advocate for the applicant: Mr M. Kagan

Advocate for the respondent: Mr B. St Clair