Brown and Secretary, Department of Education and Training [2015] AATA 518 (16 July 2015)

Division	GENERAL DIVISION	
File Number	2014/5481	
Re	Kiera Brown	
	APPLICANT	
And	Secretary, Department of Education and Training	
	RESPONDENT	
Decision

Tribunal	Mr Egon Fice, Senior Member
Dr Damien Cremean, Senior Member
	
Date	16 July 2015  	
Place	Melbourne	
The decision under review is affirmed.
..........................[sgd]..............................................
Mr Egon Fice, Senior Member

Catchwords
EDUCATION – FEE-HELP balance – Re-crediting of FEE-HELP – Special circumstances of domestic violence, homelessness and depression – Application lodged after application period – Decision under review affirmed

Legislation
Higher Education Support Act 2003 (Cth) ss 104-25, 104-30, 104-35, 212-1

Secondary Materials
William Little, H W Fowler and Jessie Coulson, The Shorter Oxford English Dictionary (Oxford University Press, 3rd revised ed, 1983) vol 2

REASONS FOR DECISION

Mr Egon Fice, Senior Member
Dr Damien Cremean, Senior Member

16 July 2015

1.	On 18 January 2009 Melbourne Institute of Business and Technology (MIBT), Deakin University, Burwood campus wrote to Ms Brown offering her a place in the Diploma of Commerce (3 semester program).  That letter advised Ms Brown of a number of payment options including the availability of FEE-HELP under the Higher Education Support Act 2003 (HES Act).  Attached to the offer letter was a FEE-HELP information booklet.  According to the offer letter, to accept the offer, Ms Brown was required to attend the Acceptance Day at MIBT.
2.	Mr Stase Kaintatsis, the Quality and Compliance Manager at MIBT, testified that he had searched MIBT’s contemporaneous records and found there was no evidence that Ms Brown attended the Acceptance Day on 28 January 2009 in accordance with the letter of offer given to her by MIBT.
3.	On 9 February 2009 Ms Brown accepted an offer of a place in the Diploma of Commerce course by signing an Acceptance and Payment Agreement (Local Students) [Semester 1, 2009] form (the Acceptance and Payment Agreement).  The Acceptance and Payment Agreement required Ms Brown to declare that she understood MIBT’s Conditions of Enrolment on the reverse side of the form and she agreed to be bound by those conditions.  She also declared that she had read and understood MIBT’s Refund Policy.  The Conditions of Enrolment included the following:
Conditions
…
3.  Once the applicant accepts a place offered by MIBT and pays fees, or submits a Request for FEE-HELP, a binding contract is created between the student and MIBT.  The Contract between the Applicant and the Institute is governed by the laws of the Commonwealth of Australia and the State of Victoria.
…
MIBT Refund Policy
The MIBT Refund Policy is provided to all MIBT prospective students with their offer letter.  The policy can also be accessed at www.mibt.vic.edu.au.
4.	On 10 February 2009 Ms Brown completed a Request for FEE-HELP assistance form.  MIBT wrote to Ms Brown on 27 February 2009 acknowledging receipt of that form.  In its letter, MIBT said: The census date for Semester 1 2009 is FRIDAY 20 MARCH 2009.
5.	Due to personal problems arising from family circumstances, Ms Brown had difficulty attending MIBT from the outset.  In fact, in a letter dated 25 March 2009, MIBT noted that her attendance records at the end of week 4 of Semester 1 disclosed her attendance was below the required 80%.  Her current attendance was rated at 51.72%.  The letter reminded Ms Brown that she was required to maintain a minimum attendance of 80% to achieve satisfactory academic progress.
6.	On 22 April 2009 Ms Pari Ponniah, Manager Student Services, wrote to Ms Brown referring to a conversation she had with her on the afternoon of that day.  Ms Ponniah referred to circumstances which prevented Ms Brown from contacting MIBT or attending classes.  She also advised Ms Brown that she needed to put those circumstances in writing so that MIBT could review her application for a leave of absence or withdrawal.
7.	However, MIBT student records disclose that MIBT only received Ms Brown’s signed withdrawal form on 5 August 2009.  This was well after the census date for Semester 1.  In a facsimile dated 4 October 2011, MIBT referred to a telephone conversation with Ms Brown on that day and attached to the facsimile an application for re-crediting and remission of FEE-HELP debt form.  Ms Brown completed that application form, signing it on 15 August 2014.  It was received by MIBT on 19 August 2014.
8.	In a letter dated 28 August 2014 a delegate of the Secretary of the Department of Education (the Secretary) informed Ms Brown that her request for the re-credit of the FEE-HELP balance was denied.  The reason given for denial was that the application was made outside the application period set out in s. 104-35 and there was no basis under     s. 104-25(1)(e)(ii) to waive that requirement.
9.	On 3 September 2014 Ms Brown wrote to Dr John Duncan, the College Director and Principal of MIBT, seeking a review of that decision.  In a letter dated 24 September 2014 Dr Duncan informed Ms Brown that he was of the view that the original decision was correct and that her application for a re-credit of the FEE-HELP balance was denied.
10.	Ms Brown lodged an application with this Tribunal on 22 October 2014 seeking a review of the reconsidered decision in accordance with s. 212-1 of the HES Act.
Re-crediting a person’s FEE-HELP balance
11.	There are a number of circumstances under which a student may have their FEE-HELP balance re-credited.  We have set out those provisions in the HES Act which are relevant to Ms Brown’s application.
104-25 Main case of re-crediting a person’s FEE-HELP balance
		(1A)…
(1)	A higher education provider must, on the *Secretary’s behalf, re-credit a person’s *FEE-HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if:
(a)	the person has been enrolled in the unit with the provider; and
(aa)	access to the unit was not provided by *Open Universities Australia; 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 104-30); and
(d)	the person applies in writing to the provider for re-crediting of the FEE-HELP balance; and
(e)	either:
(i)	the application is made before the end of the application period under section 104-35; 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.
(2)	…
12.	Relevantly, the special circumstances provisions in Ms Brown’s case are as follows:
104-30 Special circumstances
(1)	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:
(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 in the period during which the person undertook, or was to undertake the unit.
(2)…
13.	The expression application period is defined in s. 104-35 in the following way:
(1)	If:
(a)	the person applying under 104-25(1)(d) for the re-crediting of the person’s *FEE-HELP balance in relation to a unit of study has withdrawn his or her enrolment in the unit; and
(b)	the higher education provider gives notice to the person that the withdrawal has taken effect;
the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.
(1A)…
(2)	If subsections (1) and (1A) do not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.
14.	MIBT provides students with its refund policy which is said to provide guidance on the circumstances whereby MIBT will refund fees and overpayment of fees.
15.	Section 4.3 of MIBT’s Refund Policy deals with the criteria for a refund.  Relevant to Ms Brown’s application, section 4.3.1 provides:
No refund will be issued to FEE-HELP assistance students.  FEE-HELP assistance students must withdraw before the MIBT census date else the FEE-HELP debt will be incurred for that semester.  The census date for each semester is the end of week four of that semester.
16.	The consequence of MIBT’s refund policy is that a FEE-HELP debt is recorded against a student even though that student may not attend or complete a unit in a particular semester unless the student lodges an Application to Withdraw from Course form prior to the census date.  In other words, the census date is the date on which financial liability is incurred by a student who is receiving FEE-HELP assistance.  
17.	As we have already stated above, the census date for Semester 1 2009 for the three units in which Ms Brown had enrolled was 20 March 2009.  Because Ms Brown’s withdrawal form was not received by MIBT until 5 August 2009, she had incurred a FEE-HELP liability on 20 March 2009.  Therefore, the only means by which Ms Brown could remove that liability is through the re-crediting provisions set out in the HES Act.
Leave of absence or withdrawal
18.	The conditions of enrolment in a course of study at MIBT state that where a student withdraws from their studies in a particular semester after the first four weeks of course commencement, the Refund Policy will apply as at the date MIBT was advised in writing of the withdrawal.  The Refund Policy makes plain that in order to avoid liability where a student has FEE-HELP assistance, that withdrawal must take place prior to the census date.
19.	The first trimester for the units in which Ms Brown enrolled commenced on                      23 February 2009.  MIBT sent Ms Brown a letter (addressed to 33 Lemana Crescent, Mount Waverley) dated 27 February 2009 confirming it had received her FEE-HELP assistance application.  That address was the address Ms Brown provided on her student portal email.  That letter also stated the census date for Semester 1 2009 in bold, capitalised font.  Although Ms Brown did not appear at the hearing of this matter – instead relying on a friend who acted as her advocate – she was contacted by telephone in the course of the hearing and gave oral evidence.  She made a witness statement dated      12 March 2015 which was taken into evidence.  We also had before us a statement Ms Brown had made for the purposes of seeking review of the decision not to re-credit the balance of her FEE-HELP debt by Dr Duncan. 
20.	In her witness statement Ms Brown said she was unaware there was any census date which had to be met regarding a request for a refund of what she described as her HECS debt.  Ms Brown also said that she did not know she had to apply for a re-credit (presumably of her FEE-HELP debt).  However, there are a number of difficulties with those claims.  
21.	The first problem is that the Request for FEE-HELP assistance form which Ms Brown signed and dated 10 February 2009 states the following at clause 11 of that document:
11 By signing this form, you:
•	declare that:
•	you have read the FEE-HELP information booklet and are aware of your obligations if you receive FEE-HELP assistance.
•	the information on this form is complete and correct and you can produce documents to verify this if required.…
•	understand that:
•	…
•	your debt with the Commonwealth will remain if you withdraw or cancel your enrolment after the census date but that your debt may be removed by your provider in special circumstances.
22.	In her oral evidence, Ms Brown said that in 2009 she was not living at home at the time, instead staying in a number of houses and living out of her car.  She said she did not receive any mail.  She said at times she stayed with her father and sometimes with her mother. She also said she was experiencing severe depression throughout 2009.  However, when her attention was directed to clause 7.1 of the FEE-HELP information booklet, explaining how a student may withdraw from enrolment in a unit of study, she said she obviously had read it but never thought that the event would occur.  We accept that was the situation in this case.  That is because Mr Kaintatsis in his witness statement said that Ms Brown was provided with a copy of the FEE-HELP information booklet (2009 version) with her letter of offer.  We have no reason to doubt that was the case.
23.	The evidence before us also discloses that Ms Brown attended class on four occasions between 4 March 2009 and 17 March 2009.  After receiving the attendance warning letter dated 25 March 2009, Ms Brown attended one further class on 31 March 2009.  Following further non-attendance by Ms Brown, the email from Ms Ponniah on 22 April 2009 evidences a telephone discussion between Ms Ponniah and Ms Brown where withdrawal from her studies at MIBT was discussed.  The email in fact refers to an attached form which Ms Ponniah said had to be completed and returned to MIBT as soon as possible should Ms Brown decide to withdraw.  It also explained that Ms Brown was liable to penalties if she did take a leave of absence or withdraw from her study units at MIBT.  Ms Brown was also warned that if she withdrew from her course she was likely to lose all of her fees which meant she would have a FEE-HELP debt for the three units in which she was enrolled.  She was told that if she wished to appeal against losing her fees, she would need to write a letter of appeal to the College Director/Principal.  
24.	Furthermore, there is nothing stated in either her witness statement or statement provided to Dr Duncan which would indicate that Ms Brown did not receive the letter of                  27 February 2009 or, for that matter, any of the other materials dealing with conditions of enrolment, FEE-HELP review procedures or information regarding the courses in which she had enrolled.  That evidence leads us to find that Ms Brown was aware, or should have been aware, that her failure to lodge a withdrawal form with MIBT prior to the census date would result in her incurring a FEE-HELP debt.  
Ms Brown’s entitlement to have her FEE-HELP balance re-credited
25.	As is evident from the provisions set out in s. 104-25 of the HES Act, MIBT (the higher education provider in this case) is bound to re-credit a person’s FEE-HELP balance only if the matters set out in that section of the Act are satisfied.  This Tribunal, standing in the shoes of the higher education provider on the Secretary’s behalf for the purpose of making this decision, must be reasonably satisfied by the evidence that the conditions for re-crediting Ms Brown’s FEE-HELP balance are established. 
26.	It is also important to understand that those matters set out in s. 104-25(1) of the HES Act are conjunctive.  That is, each of the matters (a) – (e) in subsection (1) must be satisfied.  The two matters which apply to Ms Brown are those dealing with special circumstances and those which deal with the making of an application before the end of the application period set out in s. 104-35.  As will become apparent presently, the periods of time referred to in each of those circumstances are different.  The special circumstances provisions deal with the period of time during which the person undertook or was to undertake a unit of study.  The second issue, the making of an application before the end of the application period, deals with a 12 month period after effective withdrawal from a unit or the 12 month period following which the person undertook or was to undertake the unit of study.
27.	Therefore the first requirement for us to be reasonably satisfied that Ms Brown’s FEE-HELP balance should be re-credited is that special circumstances apply to her.
Special circumstances
28.	Ms Brown’s claim that special circumstances applied to her case rests on her having experienced what she described as quite serious family issues.  In the statement she made when seeking a review of MIBT’s decision to Dr Duncan, Ms Brown said that she was forced to go and get a job to pay for her new accommodation and to support herself.  She explained that between 2008 and 2010, her parents had split and she was moving from house to house, staying at various times with her father and at other times with her mother; and sometimes living out of her car.  She explained she suffered from severe depression at that time.  Having to work full time caused her to discontinue her studies at MIBT.  She claimed that her continuous change of places of abode resulted in her not receiving all of her mail.  This included her student email which is an email address held at MIBT which she was able to access using her student ID.  In fact in her witness statement Ms Brown said that she was not aware she continued to have access to her student email after 22 April 2009 and therefore did not check emails at that address.  She also claimed that her ex-stepfather deliberately withheld her mail because of the bitter marriage breakdown that he and Ms Brown’s mother were going through.
29.	We had in evidence a letter written by Dr Diane N Phillips dated 15 August 2014.  She said that Ms Brown had been a patient of the general practice since birth.  Dr Phillips said she was aware of Ms Brown’s family circumstances and her medical history.  Dr Phillips explained that Ms Brown was seeing a psychiatrist for depression in 2008 which resulted from an unhappy home environment and domestic violence.  She said she was aware that Ms Brown had enrolled in university in 2009 but had no financial support from her family and was living in her car at times.  Dr Phillips also explained that Ms Brown had now obtained permanent employment to enable her to support herself but nevertheless remained financially stretched.  Apparently Ms Brown told Dr Phillips that what she described as the HECS debt had caused Ms Brown severe anxiety and financial stress. In addition, Dr Phillips wondered how Ms Brown had incurred that debt because she apparently told Dr Phillips that she withdrew from her course before the census date in her first year.  With respect to Ms Brown, that is a curious statement given that she maintained that she had not been made aware of the existence of the census date and did not know that she had to apply for a re-credit of her FEE-HELP debt.
30.	We should also point out that Dr Phillips provided a subsequent letter which bears the date 15 October 2014 which is in identical terms to the earlier letter. Despite what is stated in both letters, there was no evidence that Dr Phillips examined Ms Brown on any occasion.
31.	Regardless of the many questions which perhaps remain unanswered, particularly why Ms Brown did not discuss her personal situation with any staff at MIBT, taking the most benign view of the circumstances as described by Ms Brown, we find that she satisfies the requirement in s. 104-25(1)(c) of the HES Act.  The circumstances she described were beyond her control, did not make their full impact on her until after the census date for the three units of study in question and, because she had to work full time in order to support herself, made it impracticable for her to complete the requirements for those units.  That, of course, is not the end of the matter because all of the requirements set out in 
s. 104-25(1) must be met for Ms Brown to be entitled to a re-credit of her FEE-HELP balance.
Application period
32.	The first limb of s. 104-25(1)(e) requires the application in writing for re-crediting of the FEE-HELP balance to be made before the end of the application period set out in            s. 104-35.  Although Ms Brown signed a withdrawal form on 2 July 2009 and said she had her mother send a withdrawal letter, in a telephone conversation on 4 November 2011 with Ms Margaret Reilly, Manager Academic Services, she was advised that MIBT had not received that withdrawal letter.  MIBT recorded receipt of the withdrawal form on               5 August 2009.  Ms Brown does not appear to have been given notice that the withdrawal had taken effect following that date because MIBT deemed her to have withdrawn from the course on 7 July 2009 when she failed to enrol in Trimester 2, 2009.  In an email dated 13 August 2014 sent to Ms Brown’s student mailbox by Ms Reilly, Ms Brown was informed that she was withdrawn on 7 July 2009 for failure to enrol in Trimester 2, 2009.
33.	In those circumstances, it appears to us that the 12 month period which is the application period for the purposes of s. 104-25(1)(e)(i) commenced in the time set out in 
s. 104-35(2) of the HES Act.  That is, 12 months after the period during which Ms Brown was to undertake the three units in question.  As Trimester 1 concluded on 29 May 2009, the 12 month application period concluded on 30 May 2010.  Because Ms Brown’s application for re-crediting was dated 15 August 2014 and stamped as having been received by MIBT on 19 August 2014, her application was not made before the end of the application period as required under s. 104-25(1)(e)(i).
34.	Therefore, the only remaining basis upon which Ms Brown’s late application for 
re-crediting her FEE-HELP balance may be considered is that MIBT, on behalf of the Secretary, and therefore the Tribunal standing in its shoes for the purposes of review, waives the requirement for the application to be made before the end of the application period because it was not possible for the application to be made before the end of that period (s. 104-25(1)(e)(ii)).
35.	In our view, it cannot be said in the circumstances described by Ms Brown that it was not possible for her withdrawal application to have been made within the 12 months following the conclusion of the first Trimester of her studies.  The word possible is defined in The Shorter Oxford English Dictionary in the following way: 1.  That may be (i.e. is capable of being); that may or can exist, be done, or happen; that is in one’s power, that one can do, exert, use, etc.  It should be immediately apparent that use of the word possible gives rise to a broad range of circumstances under which some action may be taken.  For something not to be possible would require a very serious constraint to be placed on a person’s ability to act, in this case, by completing an application form and sending that form by email, fax or post to MIBT.
36.	While we did not have any medical evidence regarding the severity of Ms Brown’s depression during the application period, it was not so severe that it prevented her from obtaining full-time employment at a Telstra inbound call centre.  Furthermore, she has held that position for some years even though, she agreed in oral evidence, that role was stressful at times.  Although Ms Brown said she did not inquire as to whether she continued to have access to her student email account, all she needed to do was pick up the telephone and call MIBT and make enquiries.  It seems that Ms Brown only became concerned by her FEE-HELP liability when lodging a tax return in 2011 whereupon she discovered she had a liability in excess of $7,000.  In her statement to Dr Duncan she said that if she had realised that she had to lodge an application for re-credit within 12 months, she would have done so.  
37.	The first point we must make is that lack of knowledge does not provide Ms Brown with an excuse.  She had sufficient opportunity to make enquiries and to properly inform herself of the process required to avoid incurring a FEE-HELP liability.  Regardless, as the email sent to Ms Brown by Ms Ponniah on 22 April 2009 discloses, that was raised with her in a telephone conversation held on the day the email was sent.  Despite that, she did not respond.  Ms Brown did submit a withdrawal form on 5 August 2009 which was prior to the end of the application period for the units in which she was enrolled.  That indicates she was capable of lodging an application for re-crediting of her FEE-HELP balance.  Furthermore, the evidence before us does not disclose that it was not possible for her to make a request for further information or to act on that information once it was given.  It simply discloses that she neglected to do so until such time as she became aware of the extent of her liability as a result of lodging tax returns.  For those reasons we must find it would be incorrect for us to waive the requirement that her application for re-crediting be made before the end of the application period on the ground that it was not possible for Ms Brown to make the application before the end of that period.
Conclusion
38.	Whether Ms Brown’s FEE-HELP balance should be re-credited depends upon her satisfying the provisions set out in s. 104-25(1) of the HES Act.  Although we have found that special circumstances apply to Ms Brown, the evidence before us does not provide a reason for waiving the requirement that her application for re-crediting be made before the end of the application period, being 12 months after the conclusion of the first Trimester.  We have found that it was possible for her application to be made before the end of that period and that she simply neglected to do so, even though she was aware of that requirement.
39.	It necessarily follows that we find that Dr Duncan’s decision made on behalf of MIBT on 24 September 2014, after reviewing the original decision, was correct.  We affirm that decision.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr Egon Fice, Senior Member, and Dr Damien Cremean, Senior Member	
................................[sgd]........................................
Associate
Dated 16 July 2015

Date of hearing	10 June 2015	
Advocate for the Applicant	Mr J Tomich	
Advocate for the Respondent	Mr S Maundrell	
Solicitors for the Respondent	Meyer Vandenberg