FEDERAL COURT OF AUSTRALIA
Montenegro v Secretary, Department of Education [2020] FCA 325
ORDERS
Applicant | ||
AND: | SECRETARY, DEPARTMENT OF EDUCATION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The applicant pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MARKOVIC J:
1 This is an appeal from a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 July 2019. The Tribunal had affirmed a decision of the respondent, the Secretary, Department of Education (Secretary), not to re-credit the applicant’s FEE-HELP balance under s 104-25(1) of the Higher Education Support Act 2003 (Cth) (Act) in relation to a unit of study, LAWS 6903 - Interpreting Commercial Contracts (Unit), within a Graduate Diploma in Law (Course) at the University of Sydney (University).
Background
2 Since 2002, the applicant has suffered from a skin condition which has from time to time made it impossible for him to work or study.
3 On 9 February 2016 the University made an offer to the applicant to study the Course.
4 On 18 February 2016 the applicant applied for FEE-HELP assistance in relation to the Course.
5 On 8 December 2016 the applicant enrolled in the following four units of study:
(1) the Unit;
(2) LAWS 6321 - Fiduciary Duties and Conflicts of Interest;
(3) LAWS 6252 - Legal Reasoning and Commercial Law System; and
(4) LAWS 6856 - Anti-terrorism Law.
6 The applicant withdrew from all units of study in which he enrolled on 8 December 2016, other than the Unit, prior to the respective census date for each of those units.
7 The Unit was:
(1) part of the “Intensive February” study period which commenced on 23 January 2017 and ended on 5 March 2017. The census date for that period and thus for the Unit was 24 February 2017; and
(2) described in a document titled “LAWS6903 Interpreting Commercial Contracts Semester One, 2017 Unit of Study Outline” which included, among other things, the names of the lecturers and contact details, course overview and objectives, reading materials, lecture dates and times, assessments details and attendance requirements. Relevantly, the lectures were to be held on 16, 17, 20 and 21 February 2017 from 9.00 am to 5.00 pm, the assessment tasks, comprising two essays, were due on 16 February 2017 and 4 April 2017 and all students were required to attend 70% of classes to satisfy the pass requirements for the Unit.
8 On 16 February 2017 the applicant submitted the first assessment task for the Unit. On that day he also sought an exemption from the requirement to attend classes on the grounds of illness noting that he had “an ongoing medical condition which [he] disclosed when applying for the course”.
9 On 16 February 2017 Sue Ng, postgraduate team leader, responded to the applicant’s request in the following terms:
The School has a minimum class attendance requirement of 70%.
While the medical certificate indicates the affected period is from 13 to 26 February, please confirm the class dates for which are you seeking exemption for? (Class dates: Feb 16, 17 & 20, 21(9-5). I note that you have advised that an assignment has been submitted today. Please note the lecturer may refuse the acceptance of an assignment from students who do not satisfy the class attendance requirement. To formally apply for an exemption from class attendance, please submit a formal special consideration application [together] with the relevant supporting documents. Please apply at http://sydney.edu.au/current_students/special_consideration/apply.shtml
In the event, you are unable to attend any of the classes, I suggest that you withdraw from LAW6903 Interpreting Commercial Contracts prior to the withdrawal deadline: 28 Feb 2017 in order to avoid incurring a full fee liability. You may withdraw by logging into your Sydney Student portal. In relation to your ongoing condition, I encourage you to register with the University Disability Services http://sydney.edu.au/study/academic-support/disability-support.html to ensure you are given the appropriate learning support. The Disability Service Officers will be able to meet with you to assess and devise a personal academic plan to assist with the management of your studies.
10 On 17 February 2017 the applicant applied for special consideration seeking to be exempted from class attendance for the Unit on the basis of his skin condition (Special Consideration Application).
11 The applicant did not attend classes for the Unit on 16, 17, 20 and 21 February 2017.
12 On 24 February 2017, the census date for the Unit, there was an exchange of emails between the applicant and Ms Ng about his Special Consideration Application. The applicant sought a response to that application but was informed by Ms Ng that it was with the lecturer.
13 On 2 March 2017 the applicant was informed that his Special Consideration Application had been unsuccessful. On the same day the applicant appealed the Special Consideration Application outcome by submitting an “Informal Resolution Request”.
14 On 6 March 2017 the Unit’s lecturer, Professor Elisabeth Peden, informed the applicant that she did not approve his request as “it falls outside the School requirements. There is a 70% minimum attendance requirement”. Professor Peden informed the applicant that if he wished to take the matter further and to lodge a formal appeal, or discontinue without failure, he should write to Professor David Hamer, Associate Dean (Coursework).
15 By email dated 6 March 2017 titled “LAWS 6903 – Special Consideration Application Appeal; Application numbers: 28569; 28728” the applicant informed Professor Hamer that:
I was unable to attend my classes due to severe illness as stated in my medical documentation which clearly covers the period of the 4 classes I sought exemption for.
I have spent a considerable amount of time completing all the readings for the unit and lodging in the assessment electronically and hard copy by the required due date.
I have advised of my disability when applying to Sydney University.
I commenced last year my studies but was forced to defer due to this condition.
This year I have had the condition under almost complete control despite this temporary flare up.
I am confident I will be able to fully attend and participate in all further classes.
For the second time I have been suggested to withdraw from the unit.
I would ask that i am not penalised for something that was wholly outside my control, my disability.
I am able to lodge in the final assessment by the date as required.
I was advised by Elizabeth Peden to write to you.
I would of loved nothing better than to attend all those classes if i were capable.
Please take this into consideration.
16 On 7 March 2017 the special considerations appeals team of student administration services acknowledged receipt of the applicant’s “Informal Resolution Request relating to the Special Considerations application” and informed him that it was under investigation.
17 On 8 March 2017 the applicant was informed that his appeal had been unsuccessful and it had been determined that “the original decision was correct”. The applicant was informed that if he was dissatisfied with the result he had a further right of appeal.
18 On 9 March 2017 Professor Hamer informed the applicant that he could not exempt him from the class attendance requirement for the Unit but noted that he thought that “this is an appropriate case for a DC grade”. The code “DC” means “discontinued – not to count as failure”.
19 On 10 March 2017 the applicant further appealed the Special Consideration Application outcome by submitting a “Formal Academic Appeal”. On the same day, the applicant was informed by the special considerations appeals team that his “Formal Academic Appeal relating to Special Consideration” for the Unit had been received and was under investigation.
20 A Commonwealth Assistance Notice 2017 for the University issued to the applicant on 18 March 2017 recorded that, as at the census date, the applicant was enrolled in the Unit with a tuition fee of $4,250, FEE-HELP assistance of $4,250 and FEE-HELP debt of $4,250.
21 On 21 March 2017 the applicant withdrew his appeal referred to at [19] above and indicated that he would apply for a DC grade.
22 On 13 April 2017 the applicant discontinued the Unit. An official academic record for the applicant and for the Course issued by the University records a DC grade for the Unit.
23 On 5 July 2017 the applicant applied to the University for remission of his FEE-HELP debt incurred for the Unit.
24 On 4 September 2017 the University, by a delegate of the Secretary, informed the applicant that “based on the independent supporting documents provided, the requirements for re-crediting of FEE-HELP balance under section 104-25 of the [Act] have not been met”. Accordingly the FEE-HELP balance consumed ($4,250) for the Unit would not be re-credited and the FEE-HELP debt incurred ($4,250) for the Unit would also not be remitted.
25 On 5 September 2017 the applicant applied for review of the decision referred to in the preceding paragraph.
26 On 21 September 2017, the University, by a delegate of the Secretary, informed the applicant that “based on independent supporting documents provided, the requirements under the [Act] have not been met as per the ‘special circumstances’ criteria set out at section 36-21 of [the Act]”. The applicant was also informed that as a result the FEE-HELP debt incurred ($4,250) for the Unit would not be remitted (Review Decision).
27 On 26 September 2017 the applicant applied to the Tribunal for review of the Review Decision. As noted at [1] above, on 9 July 2019 the Tribunal affirmed the Review Decision.
Statutory framework
28 Part 3-3 of Ch 3 of the Act concerns FEE-HELP assistance. Section 101-1, which explains what Pt 3-3 of the Act is about, provides that a student may be entitled to FEE-HELP assistance for units of study for which he or she is not Commonwealth supported, provided certain requirements are met.
29 Division 110 of Pt 3-3 of the Act is titled “How are amounts of FEE-HELP assistance paid?”. Section 110-1 provides that if a student is entitled to an amount of FEE-HELP assistance for a unit of study with a higher education provider the amount loaned to the student must be paid to the higher education provider to discharge the student’s liability to pay his or her tuition fee for the unit.
30 Chapter 4 of the Act concerns repayment of loans made under Ch 3. Section 129-1 explains that each loan is incorporated into the person’s accumulated HELP debt and that accumulated debts can be repaid either by making voluntary repayments or by making compulsory payments (based on the person’s income) using the system for payment of income tax.
31 Part 4-1 of Ch 4 of the Act is titled “indebtedness”. Section 134-1 relevantly explains that a person incurs a HELP debt if he or she receives, as FEE-HELP assistance, a loan from the Commonwealth under Ch 3 and that HELP debts are incorporated into a person’s accumulated HELP debt which forms the basis for calculating the amounts that the person is obliged to pay. Section 137-10 concerns FEE-HELP debts and provides (asterisked terms are defined in the Dictionary in Sch 1 to the Act):
Incurring FEE-HELP debts
(1) A person incurs a debt to the Commonwealth if, under section 110-1, the Commonwealth:
(a) makes a loan to the person; and
(b) uses the amount lent to make a payment in discharge of the person’s liability to pay his or her *tuition fee for a unit of study.
The debt is a FEE-HELP debt.
(2) The amount of the *FEE-HELP debt is:
(a) if the loan relates to *FEE-HELP assistance for a unit of study provided by a Table B provider—the amount of the loan; or
(b) if paragraph (a) does not apply and the loan relates to *FEE-HELP assistance that forms part of an *undergraduate course of study—an amount equal to 125% of the loan; or
(c) if neither paragraph (a) nor (b) applies—the amount of the loan.
When FEE-HELP debts are incurred
(3) A *FEE-HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *tuition fee for the unit.
Remission of FEE-HELP debts
(4) A person’s *FEE-HELP debt in relation to a unit of study is taken to be remitted if the person’s *FEE-HELP balance is re-credited under section 104-25, 104-27, 104-42, 104-43 or 104-44 in relation to the unit.
Note: The debt is taken to be remitted even if the person’s FEE-HELP balance is not increased by an amount equal to the amount re-credited.
(Original emphasis.)
32 Relevantly, having regard to s 137-10(4) and the applicant’s circumstances, s 104-25(1) of the Act provides:
(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.
33 Section 104-30 of the Act sets out when special circumstances will apply to a person. That section relevantly provides:
(1) For the purposes of paragraphs 104-1A(2)(b) and 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) If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Note: The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.
34 The term “unit of study” is defined in the Dictionary in Sch 1 to the Act to mean:
(a) a subject or unit that a person may undertake with a higher education provider as part of a *course of study; or
(b) a subject or unit made available by a higher education provider:
(i) access to which was provided by *Open Universities Australia; and
(ii) that a person could undertake as part of a course of study leading to a *higher education award; or
(c) a part of a *bridging course for overseas‑trained professionals.
If a higher education provider provides the same such subject or unit in respect of more than one period, the subject or unit is taken to be a different unit of study in respect of each period.
35 The Higher Education Support Act 2003 – Administration Guidelines 2012 (Cth) (Guidelines) are made under s 238-10 of the Act. Chapter 3 of the Guidelines concerns special circumstances. Paragraph 3.1 provides that the purpose of the chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that are beyond the person’s control, do not make their full impact on the person until on or after the applicable census date and make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit.
36 Relevantly the Guidelines provide:
3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1 A higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
3.5.5 The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.
3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
3.10.1 A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:
(a) before the census date, but worsen after that day; or
(b) before the census date, but the full effect or magnitude does not become apparent until on or after that day; or
(c) on or after the census date.
3.15 CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS
3.15.1 A higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit if circumstances such as the following occur:
(a) medical circumstances. For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or
(b) family/personal circumstances. For example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies; or
(c) employment related circumstances. For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or
(d) course related circumstances. For example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.
A person is unable to complete the requirements for a unit if the person is unable to:
(a) undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or
(b) complete the required assessable work; or
(c) sit the required examinations; or
(d) complete any other course requirements because of their inability to meet (a), (b) and (c) above.
37 Paragraph 1.5 of the Guidelines titled “Interpretation” includes:
1.5.1 In these guidelines, unless the contrary intention appears, terms used have the same meaning as in the Higher Education Support Act 2003.
1.5.5 In these guidelines, unless the contrary intention appears:
the Act means the Higher Education Support Act 2003;
…
unit means unit of study.
1.5.10 Terms in these guidelines that are in italics have the meaning stated in 1.5.5 of these guidelines.
38 Section 206-1 of the Act provides that a decision to refuse to re-credit a person’s FEE-HELP balance under s 104-25(1) is a reviewable decision. A person whose interests are affected by a reviewable decision may request a reconsideration of the decision: s 209-10 of the Act. Thereafter an application may be made to the Tribunal for review of a reviewable decision that relevantly has been confirmed, varied or set aside under s 209-10: s 212-1 of the Act.
The Tribunal’s decision
39 The issue before the Tribunal was whether the applicant met the requirements of s 104-25(1)(c) of the Act and whether it was satisfied that special circumstances applied to the applicant.
40 After setting out the background facts and a summary of s 104-25 and s 104-30 of the Act, the Tribunal turned to consider whether the applicant’s circumstance constituted “special circumstances” within the meaning of s 104-30 of the Act.
41 The Tribunal found that it was “obvious”, based on the evidence, that the applicant’s medical condition made it impossible for him to complete the course requirements for the Unit before the census date and that, while beyond his control, his condition made its full impact from about 13 February 2017, which was prior to the census date, making it impracticable for the applicant to complete his course requirements from that time. The Tribunal thus found that the applicant’s medical circumstances were not special.
42 The Tribunal then turned to consider the applicant’s Special Consideration Application. At [23]-[24] it made the following findings:
23. Further, whilst his application for exemption is an understandable reason for him not withdrawing before the census date, he was reliant on it being successful. Whilst it was apparent he felt he was not well served by the postgraduate team leader, apart from her error as to the census date, I cannot find anything else she did wrong. She even advised him on 16 February 2017 to consider withdrawing before the census date. He had indeed had experience in doing so before due to his ailment on other occasions with other units.
24. He took a chance on his application. I'm satisfied he did so with his eyes wide open as to risks. Unfortunately it did not work and the circumstances around it do not in themselves amount to special circumstances. Accordingly he fails on that ground.
43 The Tribunal considered the fact, which emerged during the hearing, that the University had decided during 2017, but after the Unit had finished, not to offer the Unit in the second semester of 2017 or in 2018. The only commensurate course on offer was in the United Kingdom. The Tribunal said that at first blush that factor may be construed as a special circumstance: the decision not to offer the Unit was beyond the applicant’s control and its full impact was not evident until after the census date. However, after considering the parties’ submissions, the Tribunal determined the issue against the applicant finding that the fact the Unit would not be offered again did not constitute special circumstances. At [28]-[29] the Tribunal said:
28. Unfortunately for the applicant there are several points against him. To start with the definition of “unit of study” in Schedule 1 of the Act includes the following: “If a higher education provider provides the same subject or unit in respect of more than one period, the subject or unit is taken to be a different unit of study in respect of each period” (emphasis added). So, the effect of this is to deem the same unit being offered in an impossible location like the UK a “different unit of study”, just as it would be if it was offered in 2018 at the University.
29. I am further persuaded by the example given by the respondent in their further submissions on this point, namely where the respondent gave the hypothetical example of “John” who enrols in trimester 1 in a unit of contract law, fails his final exam and thus fails the unit and incurs a FEE-HELP debt because he was enrolled in the course after the census date. He then enrols in the unit again in trimester 2, becomes ill and withdraws before the census date and as a result does not incur a FEE-HELP liability for the trimester 2 unit. John enrols again in the same unit in trimester 3 and passes the exam thus passing the unit. John incurs a FEE-HELP liability for the trimester 3 unit in addition to his trimester 1 liability.
(Original emphasis.)
44 At [31] of its reasons the Tribunal observed that, had the applicant taken the prudent course, he would have withdrawn from the Unit whilst he could, as he had done before, and that he was not guaranteed success by relying on his application for dispensation. The Tribunal found that there were no special circumstances and affirmed the Review Decision.
Notice of appeal
45 The applicant raises the following grounds in his notice of appeal:
1. Error of Law;
2. Failure to take into account relevant considerations;
3. Taking into account irrelevant considerations; and
4. Incorrect findings of fact.
46 The applicant filed a document titled “Particulars” (Particulars) on 9 August 2019 and extensive written submissions. Having regard to the Particulars the applicant raises the following matters:
(1) the Tribunal incorrectly applied the statutory provisions relating to “special circumstances”;
(2) the Tribunal erred in adopting the Secretary’s submissions about the definition of “unit of study” and should have had regard to the definition in para 3.15.1 of the Guidelines;
(3) the Tribunal erred in adopting the Secretary’s examples set out at [29] of its reasons in finding that special circumstances did not exist;
(4) the Tribunal erred in recording at [18] of its reasons that the Secretary “conceded” that there was no way the applicant could have been expected to attend classes due to his medical condition. The Tribunal erred because the Secretary is not a doctor and not qualified to speak on such matters;
(5) the Tribunal erred in attempting to dispose of the matter under “medical circumstances” alone which was not part of the arguments raised by the applicant. The applicant alleged that his circumstances went beyond medical circumstances and extended to the exemption appeal. The Tribunal erred in failing to take into account the matter of the exemption appeal and in not finding special circumstances existed based on that matter; and
(6) the Tribunal failed to apply the relevant legislative provisions in a manner that furthers the objects of the Act and erred in applying the Act “rigidly”, thus “producing a harsh and unjust outcome to an already disadvantaged individual”.
parties’ submissions
The Applicant’s submissions
47 The applicant relied on four sets of submission: submissions filed on 13 August 2019; submissions in reply filed on 14 October 2019; a document titled “further submission – authorities” filed on 28 October 2019 in which the applicant sought to respond to the Secretary’s list of authorities; and further submissions provided to the Court on 6 November 2019 in which the applicant sought to respond to a document tendered in Court by the respondent and marked Exhibit A.
48 In his submissions in chief the applicant identifies the following as issues to be determined:
a. Did the Senior Member err in applying the special circumstances test (Ground 1);
b. Did the Senior Member err in not taking into account the relevant circumstances (Ground 2);
c. Did the Senior Member take into account irrelevant circumstances (Ground 3); and
d. Did the Senior Member err in his conclusion in not finding special circumstances for the applicant given his concessions (Ground 1 and 4).
49 While the applicant has done his best, his submissions are prolix, repetitious and include a number of complaints which are unrelated to his grounds of appeal. I set out below a summary of what I understand are the applicant’s key submissions, absent the criticisms he raises which either do not relate to a ground of appeal or which amount to a plea for reconsideration because the Tribunal’s decision is unjust and thus which amount to no more than a plea to engage in a review on the merits.
50 The applicant contends that the Tribunal made a number of incorrect findings of fact, some of which he concedes are not relevant to the matters in issue, but makes detailed submissions about an alleged error by the Tribunal at [15] of its reasons where the Tribunal said that “[t]he Associate Dean of Postgraduate Coursework on 9 March 2017 also indicated to the applicant by email that he too was unable to exempt him from the attendance requirements but that it was appropriate to grant the applicant a Discontinue – Fail Grade”. The alleged error is that the grade to which the applicant was entitled was a “discontinue not to count as failure grade”. In his submissions in reply the applicant contends that this incorrect finding of fact ultimately led to the Tribunal’s decision to dismiss the submissions he made in the category he describes as “course related circumstance 1” (see [57]-[58] below).
51 The applicant submits that it would have been appropriate for the fee liability to stand if a fail grade had been recorded but that the Tribunal made a “fundamental incorrect finding of fact” which tainted the decision as it led to the Tribunal failing to take into account relevant matters and taking into account irrelevant matters. The applicant submits that the Tribunal:
(1) failed to take into account, as a relevant consideration, the application of the s 104-30(1) special circumstances test on the basis that a pending exemption application commencing before and ending after the census date was a matter beyond the applicant’s control and that the ongoing application made it impracticable to complete the rest of the course requirements given that, as at the census date, the initial application had not been rejected; and
(2) took into account, as an irrelevant consideration, its statement at [23] of its reasons that the applicant was reliant on the exemption application being successful. The applicant contends that the likely outcome or reliance on success of that application is irrelevant in applying s 104-30(1) of the Act. The applicant says that the relevant factor was that the application existed and prevented him from withdrawing from the Unit on 24 February 2017, the census date. The applicant submits that reliance on the application being successful is not remotely connected to the elements of the special circumstances test and is an irrelevant consideration which leads back to the inescapable and fundamental error of incorrectly finding the fail grade and basing the decision on that foundation.
52 Next the applicant submits that the Tribunal erred in adopting the submissions made by the Secretary in relation to the definition of “unit of study” at [28]-[29] of its reasons. The applicant observes that at [25] of its reasons, in considering whether the fact that the course would not be offered again in Australia could be a special circumstance, the Tribunal finds that the “beyond control” and “full impact not apparent until well after census date” elements were satisfied leaving only “impracticability”. He submits that the definition of “unit of study” in Sch 1 to the Act is not the appropriate definition and that the more appropriate definition is in para 3.15 of the Guidelines. The applicant refers to this alleged error as “course related circumstance 2 unit of study not offered again – no credit given for unit or course”.
53 The applicant submits that the Tribunal erred because the definition of “unit of study” is irrelevant “in applying this aspect of the test” namely whether the unit of study will be offered again. The applicant says that the Guidelines give force to the argument that s 104-30(1)(c) of the Act is taken to mean other units in other periods. The applicant contends that the decision not to offer the Unit was unknown at all material times, that the lack of knowledge should be treated as a special circumstance and that the decision not to offer the Unit again, which became apparent later, prevented him from undertaking the Unit in the other period thereby making it impracticable.
54 The applicant submits that the more appropriate definition is that “unit” as referred to in para 3.15.1(d) of the Guidelines means unit of study without any extended definition and that para 1.5 of the Guidelines sets out the appropriate definition. He contends that para 3.15.1 refers to “unit of study” and then to “unit” in the first paragraph, that the contrary intention set out at para 1.5.1 of the Guidelines is realised when applying that guideline and there is no room for the extended definition. The applicant submits that the fact that “unit” and “unit of study” are used interchangeably in para 3.15.1 clearly suggests that unit of study simply means unit of study. He says that para 3.15.1(d) refers to “unit” twice suggesting that, in this context, “unit of study” means “unit of study with the extended definition in the Act”.
55 The applicant submits that para 3.15.1 of the Guidelines only sets out matters where the higher education provider has no choice but to find special circumstances and does not prevent the higher education provider from finding special circumstances without reference to that guideline. He contends that is why the definition of any word is irrelevant. The applicant says that it is not correct that the only special circumstances that exist are those set out at para 3.15.1 of the Guidelines and that, while paras 3.1, 3.5 and 3.10 of the Guidelines are “set in stone” and must be applied, this is not the case for para 3.15.1. The applicant submits that the higher education provider may find circumstances that do not fall within the categories set out in para 3.15.1 and that the language of the paragraph is not exhaustive. After setting out two examples which the applicant says do not come within the examples listed in para 3.15.1 but which can constitute special circumstances so long as they are not inconsistent with the Act and the Guidelines, the applicant submits that it follows that the Unit not being offered again does not necessarily preclude it from being a special circumstance just because it does not fit in the one example provided at para 3.15.1(d) of the Guidelines.
56 Next the applicant submits that at [22] of its reasons the Tribunal attempts to dispose of the matter under medical circumstances alone but that he submitted many times both in writing and in oral argument that this was not the case he was putting. He submits that the Tribunal has taken an irrelevant consideration into account.
57 The applicant submits that, importantly, at [23] of its reasons the Tribunal correctly accepts that not withdrawing before the census date, when there was a subsisting appeal, was “understandable” and that at [17] of its reasons the Tribunal accepts that it was “sensible” for the applicant not to complete the final assessment task given the circumstances. The applicant submits that the Tribunal has satisfied the elements for special circumstances in its reasoning relating to his submissions on “course related special circumstance 1 – original argument” made to the Tribunal. He submits that the Tribunal’s finding that it was “sensible” not to complete the final assessment task amounts to “impracticability” for the purposes of his “course related special circumstance 1 – original argument”. Thus he contends that that argument should have succeeded and that the Tribunal erred in not finding special circumstances.
58 The applicant makes the following further submissions in relation to what he describes as his “course related special circumstance 1 – original argument”:
(1) in relation to “beyond control” (s 104-30(1)(a) of the Act and para 3.5 of the Guidelines) that:
(a) it was beyond the applicant’s control to withdraw from the Unit before the census date because his application for exemption from attending classes was under appeal in the period from 17 February 2017 to 24 March 2017;
(b) it is clear from the Guidelines that the Secretary should be satisfied that it was beyond the applicant’s control given that a reasonable person would consider that not withdrawing from a unit when an application for exemption is under appeal is not due to one’s action or inaction;
(c) a reasonable person would consider that a person could not possibly be held responsible for not withdrawing as withdrawal would mean that the person would no longer be enrolled in the subject and there would be no chance of being granted an exemption, effectively ending the appeal;
(d) a reasonable person would also consider that one would not be held responsible for, nor consider it one’s action or inaction, not completing a final assessment task in circumstances where the assessment was due on 4 April 2017 and there was an ongoing exemption appeal that extended from 17 February 2017 to 24 March 2017. The applicant says this brought about uncertainty as to whether the 6,000 word essay would be accepted or not; and
(e) it was the medical condition together with the exemption appeal that made it a matter beyond the applicant’s control. It is not the medical condition which precluded the applicant from fulfilling the course requirements but the appeal which has as its basis the intermittent medical condition. The applicant says that the medical condition was responsible for his not attending the four classes and that he then exercised his right to seek an exemption for those classes;
(2) in relation to the circumstances that did not make their full impact until on or after the census date (s 104-30(1)(b) of the Act) that:
(a) the matter was under appeal from 17 February 2017 to 24 March 2017 and the census date was “24/28 February 2017”. The exemption appeal was lodged before the census date but its full magnitude was not known until well after the census date;
(b) the relevant circumstances are the circumstances taken as a whole, including the medical condition which forms the basis of the exemption appeal and the appeal itself; and
(c) the medical condition and the pending appeal which precluded withdrawal are the relevant circumstances which made it impracticable to complete the requirements of the Unit. The medical condition was the basis for the exemption appeal. Once the exemption appeal was lodged it became impracticable to complete the requirements of the Unit and to withdraw before the census date; and
(3) in relation to impracticability (s 104-30(1)(c) of the Act and para 3.15.1 of the Guidelines) that it was impracticable to complete the course requirements due to “course related circumstances” and the applicant was unable to “complete the required assessable work” given the subsisting appeal. The applicant says he was prevented from fulfilling the course requirements, i.e. the final assessment task, and forced to withdraw the appeal as too much time had already passed. The applicant says that at all times he was willing and able to complete the final assessment task but it became impracticable given the passage of time and the uncertainty of outcome as, by 24 March 2017, only two weeks remained to complete a 6,000 word essay due on 4 April 2017. At that time he had no idea when the appeal would be decided.
The Secretary’s submissions
59 The Secretary’s submissions address each category of alleged error as set out in the Particulars summarised at [46] above.
60 The Secretary first addresses the allegation that the Tribunal incorrectly applied the Act. The Secretary notes that the applicant’s primary contention appears to be that the Tribunal misunderstood his claimed special circumstances and that the relevant circumstance was his pending application for special consideration which arose as a consequence of his medical condition, not his medical circumstances alone. The Secretary contends that this ground does not identify an error in the Tribunal’s decision, it is clear that the Tribunal clearly understood and applied the relevant test for special circumstances under s 104-30(1) of the Act and, on a fair reading of its reasons, the Tribunal did not treat the applicant’s circumstances as solely medical. The Secretary submits that the Tribunal understood and considered the applicant’s claims.
61 The Secretary also notes that the applicant contends that the Tribunal erred by not finding that special circumstances existed, in relying on para 3.15.1 of the Guidelines, and says special circumstances may exist even if they do not fall within the examples provided for in those guidelines. The Secretary submits that this ground of review does not identify an error on the part of the Tribunal but expresses disagreement with the Tribunal’s decision and thus seeks impermissible merits review. The Secretary also submits that, in any event, at no point did the Tribunal conclude that the applicant did not satisfy the special circumstances test simply because his circumstances did not fit within the examples described in para 3.15.1 of the Guidelines. The Secretary notes that the Tribunal does not refer to the Guidelines in its reasons and that, rather, the Tribunal made its decision on the basis that the applicant’s claimed circumstances did not meet the criteria in s 104-30(1) of the Act.
62 The Secretary next addresses the applicant’s contention that the Tribunal erred by relying on her submissions in relation to the definition of a “unit of study” contained in Sch 1 to the Act and that it should have relied on the definition of a “unit of study” contained in para 3.15.1 of the Guidelines. The Secretary submits that there is no definition of the term “unit of study” in the Guidelines, that para 1.5.1 of those guidelines provides that, unless the contrary contention appears, terms used in the Guidelines have the same meaning as in the Act, that para 1.5.5 defines “unit” to mean “unit of study” and that the only definition of that term is set out in Sch 1 to the Act.
63 The Secretary also submits that, to the extent that the applicant’s contention is that the Tribunal should have had regard to the meaning of “unit” within the context of para 3.15.1(d) of the Guidelines, that contention does not identify any error in the Tribunal’s approach. The Secretary refers to the example of a course related circumstance set out in the Guidelines at para 3.15.1(d) (see [36] above) and observes that it appears from the applicant’s submissions that he considers that if the Tribunal had regard to that example it would have concluded that the unavailability of the Unit at a later date was a special circumstance because it was a circumstance that made it impracticable for him to complete the requirements of the Unit. The Secretary submits that it is clear from the Tribunal’s reasons that it understood the concept of a “unit of study” and its meaning given in Sch 1 to the Act. Accordingly the Secretary submits that from both a factual and legal perspective the applicant’s submission has no merit. The Secretary submits that, in any event, para 3.15.1(d) of the Guidelines does not assist the applicant because the reference to “unit” is to circumstances where a change has been made to the unit the subject of the application and not to other units in the future.
64 Insofar as the applicant contends that the Tribunal erred in adopting the Secretary’s hypothetical examples referred to at [29] of its reasons in order to find that special circumstances did not exist, the Secretary submits that the Tribunal relied on those examples when considering whether the unavailability of the Unit at a later date was a special circumstance. The Secretary explained that her primary submission before the Tribunal was that an event that occurs in the future cannot logically be the cause of an event that has already happened. Accordingly, the unavailability of the Unit in the future, which was not known to the applicant at the time that he was enrolled in the Unit, could not have had an impact on his ability to complete the requirements of the Unit.
65 The Secretary submits that the applicant’s contentions do not identify an error in the Tribunal’s decision as it is clear that the Tribunal:
(1) understood the claim made by the applicant that a decision was made by the University not to offer the Unit after 2017;
(2) properly understood and applied the relevant legislative test to determine whether the unavailability of the Unit at a later date was a special circumstance; and
(3) understood the Secretary’s submission that the unavailability of the Unit at a later date could not have made it impracticable for the applicant to complete the requirements of the Unit as it was not a circumstance that affected him at the time he was enrolled in the Unit.
66 The Secretary addresses the applicant’s contention that the Tribunal erred in stating that the Secretary “conceded” that the applicant could not have been expected to attend classes because of his medical condition as the Secretary is not a medical doctor and not qualified to speak on such matters. The Secretary submits that the Tribunal’s reference to a concession by her was a reference to the submissions made by the Secretary to the Tribunal in which she conceded that the applicant’s skin condition made it impracticable for him to attend classes and therefore complete the requirements of the Unit, which is one of the three criteria under s 104-30(1) of the Act that must be met in order for a circumstance to be a special circumstance. The Secretary submits that she made the concession on the basis of the medical evidence before the Tribunal and it was not an expression of the Secretary’s own medical opinion. The Secretary contends that the applicant’s submission does not identify an error in the Tribunal’s decision.
67 The Secretary next addresses the applicant’s contention that the Tribunal erred in not finding that his pending application for special consideration was a special circumstance and that the Tribunal’s finding that this circumstance did not make it impracticable for the applicant to withdraw from the Unit was inconsistent with its earlier findings that the applicant’s decision not to withdraw before the census date was “understandable” and his decision not to complete the final assessment task, while his application was pending, was “sensible”. The Secretary submits that there is no relevant inconsistency between the two statements made by the Tribunal as both can be true at the same time. That is, the applicant’s decision not to withdraw before the census date can be “understandable” and his decision not to complete the final assessment task might be “sensible” because of his pending application, but that does not mean that the pending application made it impracticable, in the relevant sense, for him to withdraw from the Unit before the census date.
68 Finally, insofar as the applicant contends that the Tribunal should have applied the legislative provisions relating to special circumstances in a manner that furthers the objects of the Act rather than applying it “rigidly”, the Secretary submits that the Tribunal applied the relevant provisions of the Act to the applicant’s circumstances in accordance with the terms of the legislation and the relevant authorities. The Secretary contends that in substance this is a complaint that goes to the applicant’s disagreement with the Tribunal’s decision and seeks to engage the Court in impermissible merits review.
Consideration
69 A convenient starting point in addressing the applicant’s grounds is the legislative framework, set out in detail at [28]-[38] above.
70 The applicant sought review in the Tribunal of the decision to refuse to re-credit his FEE-HELP debt for the Unit. A FEE-HELP balance must be re-credited with an amount equal to the amount of FEE-HELP assistance received by a person for a unit of study if the requirements of s 104-25(1) are satisfied. The only issue before the Tribunal was whether s 104-25(1)(c) had been satisfied, namely whether the Tribunal was satisfied that “special circumstances” applied to the applicant.
71 Section 104-30(1) of the Act, set out at [33] above, relevantly provides that special circumstances will apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that meet the three criteria specified therein. That is, that the circumstances are beyond the person’s control, that they do not make their full impact on the person until on or after the census date for the unit of study and that they make it impracticable to complete the requirements for the unit in the period in which the person undertook, or was to undertake, the unit.
72 Section 104-30(2) refers to the Guidelines and provides that if the Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in s 36-21(1)(a), (b) or (c) of the Act, any decision of a higher education provider under s 104-30 must be in accordance with those guidelines. Chapter 3 of the Guidelines (see [36] above) specifies such circumstances for the purposes of s 36-21(1)(a), (b) or (c) of the Act. As noted in s 104-30(2), the matters referred to in s 36-21(1)(a), (b) or (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to those referred to in s 104-30(1)(a), (b) and (c) of the Act.
73 The controversy between the parties centres around two principal issues. First, whether the Tribunal failed to consider the applicant’s circumstances when applying the test in s 104-30(1) of the Act. The relevant circumstances are said to be that the Special Consideration Application was pending in the period that commenced prior to the census date for the Unit but was not concluded until after that date. Secondly, whether the fact that the Unit was not to be offered again was a circumstance that made it impracticable for the applicant to complete the requirements for the Unit. That, in turn, raises the questions of the applicable definition of “unit of study” and whether the Tribunal was required to and/or did have regard to para 3.15.1(d) of the Guidelines in determining the issue.
74 I will address each of these issues in turn before turning to some other issues raised by the applicant.
Did the Tribunal fail to consider the applicant’s circumstances?
75 The applicant contends that the Tribunal failed to consider his ground or claim that it was the fact of the pending Special Consideration Application which was necessitated by his medical condition, and not his medical condition alone, that constituted his “circumstances” for the purposes of s 104-30(1) of the Act.
76 There was no dispute that such a claim was made by the applicant to the Tribunal. For example in his application lodged with the Tribunal on 26 September 2017 under the heading “Reasons for the application” the applicant includes:
I sought a remittance of the hecs fee as I did not complete the subject
The first reason for refusal was that the medical certificate did not cover the appropriate period.
So I sent further medical evidence which fulfilled that requirement.
The appeal as refused now citing: I had plenty of time to withdraw before the census date.
Why would I withdraw before the census date when I was in the process of seeking an exemption and several appeals that followed in an attempt for permission to sit the final assessment which was a further essay?
I did not withdraw before the census date because the matter was under appeal. Simple as that.
77 That was also evident from the applicant’s submissions before the Tribunal. In his submissions dated 29 June 2018 which are expressed both to be prepared in response to the Secretary’s statement of 18 June 2018 and to contain the applicant’s submissions, the applicant includes under the heading “The Relevant Test”:
Beyond control
…
It was beyond my control to withdraw from the unit before the census date because the matter of the exemptions of classes was under appeal from 17 February 2017 - 24 March 2017 noting that the census date was on 24 February 2017. For the foregoing reasons it was also beyond my control to complete the requirements of the unit.
…
Further, a reasonable person would also consider one would not be held responsible, nor consider it one’s action or inaction, in not completing a final assessment task in circumstances where the assessment is due 4 April 2017 and there is a subsisting exemption appeal that extended from 17 February 2017 - 24 March 2017 which brought about uncertainty as to whether the 6000 word essay would be accepted or not (in addition to the first assessment task already submitted).
The medical condition together with the exemption/appeals made it a matter beyond my control. It is not the medical condition which precluded me from fulfilling the course requirements – it is the appeal – which as its basis is the intermittent medical condition. …
Circumstances that did not make their full impact until on or after the census date
…
The matter was under appeal from 17 February 2017 - 24 March 2017 and the census date was 24 February 2017. The exemption appeal was lodged before the census date, and the full magnitude not known til well after the census date. The relevant circumstances are the circumstances as a whole including the medical condition which forms the basis of the exemption appeal and the appeal itself. …
Impracticable to Complete the Course - Course related Circumstances or Unable to fulfil course requirements
…
It was impracticable to complete the course requirements due to “Course related circumstances” as given the subsisting appeal, I was prevented from fulfilling course requirements – the final assessment task – forced to withdraw the appeal as too much time had already passed. At all times was I willing and able to complete the final assessment task but it became impracticable given the passage of time and the uncertainty of outcome as by 24 March 2017, there was only 2 weeks remaining to complete a 6000 word essay due 4 April 2017 and no idea as to when the appeal would be decided especially noting the fact it had already run approximately 6 weeks since its inception.
78 The applicant contends that the Tribunal erred because it failed to consider this claim. In my opinion that is not so. The Tribunal’s reasons reveal the following:
(1) first, the Tribunal recites the relevant facts. At [4] it refers to the applicant’s medical condition, at [10] it refers to the Unit’s requirement that students attend 70% of classes to satisfy the pass requirements, at [12] it refers to the applicant’s request to be exempted from attending classes because of his medical condition, at [13] it refers to the suggestion by the University to the applicant in response to his request for exemption from class attendance that, if he was unable to attend any classes, he should withdraw from the Unit prior to “the withdrawal date” in order to avoid incurring any fee liability and at [15] it refers to the Special Consideration Application which the Tribunal notes the applicant had his heart set on pursuing and which was refused by the University first on 2 March 2017 and then, on appeal, on 8 March 2017;
(2) secondly, at [20]-[21] the Tribunal summarises the relevant provisions of the Act insofar as they concern the determination of the existence of “special circumstances” referring to s 104-25(1)(c) and s 104-30(1) of the Act; and
(3) thirdly, at [23]-[24] the Tribunal addresses the Special Consideration Application finding, in the terms set out at [42] above, that it did not constitute “special circumstances” and that the applicant accordingly failed on that ground.
79 There is a degree of concision in the Tribunal’s reasons but that of itself is not a reason to find error on the part of the Tribunal. Despite the brevity, it is clear that the Tribunal was aware of the claim made by the applicant that the Special Consideration Application, which was based on his medical condition and the outcome of which was not known until after the census date had passed, constituted “special circumstances”. Relevantly, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]. Further, the Tribunal’s reasons are not to be scrutinised with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
80 The applicant also alleges that the Tribunal failed properly to apply the legislative test in determining his claim and that it erred in failing to find “special circumstances”.
81 Section 104-30(1) of the Act sets out a cumulative test for determining whether the higher education provider is satisfied that there are special circumstances. That is, the circumstances applying to the person must meet each of the requirements in paras (a), (b) and (c). They must be beyond the person’s control and not make their full impact on the person until on or after the census date for the unit and 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. Failure to satisfy any one of these requirements will mean that special circumstances do not apply to the person.
82 In the present case, though not expressly stated, I would infer that at [23]-[24] of its reasons the Tribunal undertook its analysis by reference to the first requirement of s 104-30(1), namely whether circumstances that applied to the applicant were beyond the applicant’s control, and concluded they were not. It found that the applicant pursued the Special Consideration Application “with his eyes wide open”. That is, against a factual background, as found by the Tribunal, that the applicant had been informed that if he could not attend classes he should withdraw prior to the census date to avoid incurring any fee liability but the applicant was intent on pursuing his Special Consideration Application. In other words, it was within the applicant’s control to withdraw from the Unit prior to the census date and/or to pursue the Special Consideration Application. Once the Tribunal was satisfied that the applicant’s circumstances were not beyond his control, it could not be satisfied that special circumstances applied to him.
83 It is also convenient at this point to consider Ch 3 of the Guidelines. As the Secretary notes, in the Particulars the applicant contends that special circumstances may exist without coming within the examples included in the Guidelines. Section 104-30(2) of the Act provides that if the Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in s 36-21(1)(a), (b) or (c), any decision of a higher education provider under s 104-30 of the Act must be in accordance with those guidelines.
84 The phrase “in accordance with” was considered in Friends of Leadbeater’s Possum Inc v VicForests (2018) 260 FCR 1 at [201]-[216]. Relevantly, at [202] Mortimer J accepted a submission that “in accordance with” means “consistently with”, “in conformity with” or “in compliance with”. Her Honour referred to the authorities which had previously considered the meaning of the phrase “in accordance with” and then turned to consider it in the context of the particular legislation in issue in that case, the Environment Protection and Biodiversity Conservation Act 1999 (Cth). At [208]-[209] her Honour said:
208 Ultimately, there is only so far one can take the meaning of the phrase “in accordance with” without a specific legislative and factual context in which to apply it, as the decision in Hestelow shows. To return to an earlier example (and one that VicForests at least in principle seemed to embrace), the absolute prohibition in Attachment 1 of the Central Highlands RFA from timber harvesting of rainforest is not something susceptible to “substantial” compliance. If rainforest is logged, the prohibition in the Central Highlands RFA is contravened, and it is difficult to see how that logging (as an action and a forestry operation) could be “in accordance with” the Central Highlands RFA. In contrast, there may be management prescriptions about exclusion zones on the discovery of individuals of a listed threatened species which, in a concrete case of a forestry operation, may be satisfied even if the exclusion zone is a metre, or three metres, less than the exact measurement set out in the management prescription. As the State submits, these are in the realms of hypotheses, but I give the examples only to illustrate that just because the Court determines that “in accordance with” in the context of s 38(1) means “in conformity with” or “compliant with”, not every irregularity or inconsistency between what an RFA (and the substitute State regime) require for the conduct of forestry operations and what occurs in the undertaking of a forestry operation will remove the benefit of the s 38(1) exemption. Each situation will need to be considered on its own facts.
209 In all these examples, the meaning which is given to “in accordance with” is one which requires the content of the document, or regulation, or rule to be ascertained, and then for the conduct to be measured against that content. That is the essential distinction between the meaning for which VicForests contends, and the meaning for which the applicant and the interveners contend.
85 Having regard to the context in which the phrase “in accordance with” is used in the relevant part of the Act, it is appropriate to adopt the same meaning here such that s 104-30(2) requires a decision of a higher education provider under s 104-30 to be in conformity with or in compliance with Ch 3 of the Guidelines. The decision-maker must, in effect, act or carry out his or her task consistently with those guidelines.
86 The Tribunal does not refer to the Guidelines in considering or drawing any conclusions about the existence or otherwise of special circumstances. Thus insofar as the applicant contends that the Tribunal erred in relying on para 3.15 of the Guidelines, the applicant cannot succeed. The Tribunal had regard to s 104-30(1) of the Act in drawing its conclusions.
87 Notwithstanding that, the Tribunal’s consideration of the claim was, in any event, in accordance with, in conformity with or in compliance with the relevant part of the Guidelines. As I have already observed the Tribunal disposed of the claim having regard to s 104-30(1)(a), whether the circumstances were beyond the applicant’s control. Paragraph 3.5 of the Guidelines (see [36] above) addresses that requirement and focuses on action or inaction on the part of the relevant person. The Tribunal’s findings were in conformity with para 3.5 in that they were to the effect that the applicant’s situation was due to his action in pursuing the Special Consideration Application and/or due to his inaction in not withdrawing from the Unit prior to the census date because of the Special Consideration Application.
88 The final issue, arising in the context of the applicant’s claim that the Special Consideration Application was the relevant circumstance for the purposes of considering whether special circumstances applied to him, is the allegation that the Tribunal’s finding that this circumstance did not make it impracticable for him to withdraw from the Unit was inconsistent with its findings that the applicant’s decision not to withdraw before the census date was “understandable” and his decision not to complete the final assessment task was “sensible” given the pending Special Consideration Application.
89 There is no inconsistency in these findings. At [17] of its reasons the Tribunal refers to the applicant’s evidence that he did not complete his second assessment task as he was awaiting the outcome of the Special Consideration Application. The Tribunal expressed a view that “that was sensible in all the circumstances” and said that “nothing in my view turns on that point”. At [23] of its reasons, the Tribunal notes that the Special Consideration Application was “an understandable reason for him not withdrawing before the census date”. However, when the Tribunal came to consider whether the circumstances relating to the Special Consideration Application were special circumstances it did so by reference to the statutory test and, as set out at [82] above, concluded that they were not because the circumstances were not beyond his control.
90 At [31] of its reasons the Tribunal says, had the applicant taken the prudent course, he would have withdrawn when he could. The applicant says this finding is “at odds” with the earlier findings concerning the steps he took. I disagree. The finding recognises that it was open to the applicant to withdraw from the Unit earlier. It is not inconsistent with the earlier findings which do no more than express some understanding of why the applicant adopted the course he did.
Was the fact that the Unit was not to be offered again a special circumstance?
91 This circumstance was considered by the Tribunal commencing at [25] of its reasons. The issue that arose was whether the fact that the Unit was not to be offered again made it impracticable for the applicant to complete the requirements for the Unit in the period during which he undertook, or was to undertake, the Unit. The Tribunal was satisfied that the first two requirements of s 104-30(1) were met in that the decision not to offer the Unit was beyond the applicant’s control and its full impact on the applicant was not apparent until well after the census date.
92 The Tribunal found that it was not impracticable, in the sense set out in s 104-30(1)(c) of the Act, and thus the fact that the Unit was not to be offered again did not amount to special circumstances, agreeing with the Secretary’s submissions on the issue. The Tribunal’s reasoning is set out at [28]-[29] of its reasons (see [43] above). It, in effect, accepts the Secretary’s submissions in relation to the definition of “unit of study”.
93 The first criticism raised by the applicant is that the Tribunal erred by relying on the Secretary’s submissions in relation to the definition of “unit of study”, contending that the Tribunal should have adopted the definition of “unit of study” in para 3.15.1 of the Guidelines. There is no such definition in para 3.15.1 or anywhere else in the Guidelines. The applicant seems to urge the adoption of the ordinary meaning of those words. He says that “unit of study” means unit of study. However the applicant ignores para 1.5 the Guidelines which concerns interpretation and which relevantly provides that, unless the contrary intention appears, terms used have the same meaning as in the Act (para 1.5.1) and that “unit” means “unit of study” (para 1.5.5).
94 Insofar as the terms “unit of study” or “unit” are used in Ch 3 of the Guidelines, there is no contrary intention which means that the definition in the Act applies and the only definition of “unit of study” is to be found in the Dictionary in Sch 1 to the Act.
95 The applicant also alleges that the Tribunal should have had regard to para 3.15.1 of the Guidelines in determining the meaning of “unit of study” for the purposes of s 104-30(1)(c) of the Act. That part of the Guidelines (set out at [36] above) provides for “course related circumstances” which may make it impracticable to complete the requirements of the unit of study during the period the person undertook, or was to undertake, the unit. The applicant suggests that applying the example in para 3.15.1(d) of the Guidelines would have resulted in the Tribunal concluding that the Unit not being offered in the future made it impracticable for the applicant to complete the Unit. I do not agree. As the Secretary submits, that a course or unit will not be offered at a later date is not a matter that is caught by the example of course related circumstances in para 3.15.1(d) of the Guidelines. That paragraph speaks to the unit the subject of the application and changes made to that unit at the relevant time and not to other units in the future.
96 Finally, that para 3.15.1 of the Guidelines is not exhaustive does not take the applicant’s contentions any further. There is no error in the Tribunal’s approach to the application of the definition of “unit of study”.
97 The second criticism raised by the applicant is that the Tribunal at [29] of its reasons erred in adopting a hypothetical example provided by the Secretary in her post hearing submissions dated 3 December 2018. This part of the Tribunal’s reasons, concerning the fact that the Unit was not to be offered in the future, suffers from the brevity with which the Tribunal addresses the issues generally, making it somewhat difficult to understand. However, it is clear from the Secretary’s post hearing submissions before the Tribunal that the example cited at [29] was provided in the context of the Secretary’s submissions in relation to s 104-30(1)(c) of the Act and the contention put by the Secretary that each session of a subject is a separate unit of study having regard to the definition of “unit of study” in the Dictionary in Sch 1 to the Act. Seen in context, the hypothetical example referred to at [29] of the Tribunal’s reasons was not irrelevant.
98 The Tribunal, in finding that the unavailability of the Unit in the future was not a special circumstance, accepted the Secretary’s submissions. Critically, the Secretary submitted in the post hearing submissions that the fact that the Unit would not be available in the future could not have made it impracticable for the applicant to complete the Unit as it was not a circumstance that affected him at the time he was enrolled in the Unit. That submission is effectively referred to by the Tribunal in a summary way at [25] of its reasons and ultimately accepted.
Other matters
99 There are three additional matters raised by the applicant which remain to be addressed.
100 The first is that the Tribunal made an error in its finding at [15] of its reasons in relation to the grade that Professor Hamer suggested would be appropriate for the Unit. At [15] the Tribunal relevantly said:
The Associate Dean of Postgraduate Coursework on 9 March 2017 also indicated to the applicant by email that he too was unable to exempt him from the attendance requirements but that it was appropriate to grant the applicant a Discontinue – Fail Grade.
In fact, as noted at [18] above, the grade which Professor Hamer suggested would be appropriate was a DC grade i.e. “discontinued – not to count as failure” grade.
101 In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2015) 144 FCR 1 at [53]-[54] a Full Court of this Court (Black CJ, French and Selway JJ) considered the extent to which a factual error on the part of a tribunal may evidence or constitute a failure by the tribunal to carry out its review function or otherwise amount to a failure of jurisdiction. The Full Court said:
53 It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 [75 ALJR 542] at [35] per McHugh J.
54 The question was further discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165. McHugh and Gummow JJ, with whom Callinan J agreed, rejected a submission by the Minister that the presence of an error of law was essential for a finding of jurisdictional error to support the grant of relief under s 75(v) of the Constitution. They said (at [54]):
The introduction into this realm of discourse of a distinction between errors of fact and law, to supplant or exhaust the field of reference of jurisdictional error, is not to be supported.
Error of law may occur within jurisdiction: S20/2002 at [57]. The line drawn between factual and legal matters may vary according to the purposes it serves: at [58]. Their Honours cautioned against importing into s 75(v) wider approaches to the consideration of factual errors derived from statutory jurisdictions providing for appeals on questions of law or systems of judicial review. Examples of such jurisdictions are the jurisdiction conferred on the Federal Court by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) to hear appeals from AAT decisions on questions of law and that conferred on the Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth). The observations in the joint judgment in S20/2002 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s 75(v) or the exercise by this Court of its analogous statutory jurisdiction under s 39B of the Judiciary Act. The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error are likely to be quite limited.
102 Contrary to the applicant’s submissions, the Tribunal’s error, which was one of fact, did not affect the Tribunal’s decision for the following reasons. First, having made the finding, the Tribunal did not subsequently refer to it and clearly did not take it into account in determining whether it was satisfied that special circumstances applied to the applicant. Secondly, in any event, Professor Hamer’s communication about the appropriate grade to be awarded in circumstances where the applicant had not attended the scheduled classes could not be relevant to the question of special circumstances in the context of seeking relief from FEE-HELP liability. Thirdly, the grade ultimately awarded to the applicant does not affect his fee liability. That is, a FEE-HELP debt is incurred by a person immediately after the census date: s 137-10(3) of the Act.
103 The second matter concerns the applicant’s contention that the Tribunal erred in referring to the Secretary’s “concession” that the applicant could not have been expected to attend classes because of his medical condition. The applicant alleges that the Secretary is not qualified to make such a concession. No error is revealed by the Tribunal referring to that concession. As the Secretary submits, the concession was made by the Secretary in submissions based on the medical evidence that was before the Tribunal. The Tribunal did no more than to record the concession which was in the applicant’s favour.
104 The third matter is the applicant’s contention that the Tribunal should have applied the relevant legislative provisions in a manner that furthers the objects of the Act and not “rigidly”. No error has been revealed in the manner in which the Tribunal applied the relevant provisions of the Act. By this contention, the applicant reveals his dissatisfaction with the Tribunal’s decision and his disagreement with the outcome.
Suppression order
105 Before the Tribunal the applicant was referred to by a pseudonym, PSVN. In his notice of appeal filed in this Court, the applicant adopted that pseudonym.
106 At the hearing before me the applicant made an oral application that he have the benefit in this Court of an order suppressing his name. The applicant explained that before the Tribunal the Secretary subpoenaed the applicant’s confidential medical records and, as I understand it, it was on that basis that the suppression order was made. At the conclusion of the hearing I granted leave to the applicant to file and serve submissions in support of his oral application for an order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) setting out the information in relation to which he sought such an order, the grounds upon which he sought the order, having regard to s 37AG of the FCA Act, and the reasons why such an order should be made. I also granted leave to the Secretary to file any submissions in response.
107 On 30 October 2019 the applicant informed the Court that he had no grounds upon which to seek such an order, having regard to the provisions of the FCA Act, and withdrew his oral application for the order to be made. Accordingly, as the application is no longer pressed, the applicant will not be referred to by a pseudonym in this Court.
Conclusion
108 The applicant has failed to establish any error in the Tribunal’s decision. Accordingly, his appeal should be dismissed.
109 That leaves the question of costs of the appeal. In his submissions in chief the applicant submits that he was forced to appeal to this Court to have his matter taken seriously, he was left with no other choice, he hopes the Court takes that into account and, in light of this, it would be appropriate for each party to bear its own costs of the proceeding, despite the outcome. The Secretary seeks his costs of the appeal in the event that it is dismissed.
110 Save for some limited exceptions, the Court has a broad jurisdiction to award costs in all proceedings: see s 43 of the FCA Act. In the circumstances of this case, in my opinion, there is no compelling reason why the usual rule that the successful party should have its costs should not apply. The applicant was entitled to bring his appeal. However, in circumstances where he has been entirely unsuccessful, it is appropriate that costs should follow the event and that an order be made that the applicant pay the Secretary’s costs of the proceeding as agreed or taxed.
111 I will make orders accordingly.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. |
Associate:
