FEDERAL COURT OF AUSTRALIA Loch v Secretary, Department of Education and Training [2019] FCA 2183 Appeal from: Loch v Secretary, Department of Education and Training [2019] AATA 1101 File number: NSD 1014 of 2019 Judge: JAGOT J Date of judgment: 13 December 2019 Catchwords: ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal for remission of HECS/HELP debt due to medical condition – no question of law – appeal dismissed Legislation: Higher Education Support Act 2003 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Cases cited: Loch v Secretary Department of Education and Training [2019] AATA 1101 Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 Date of hearing: 13 December 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr A Holcombe of HWL Ebsworth Lawyers ORDERS NSD 1014 of 2019 BETWEEN: ODIN AARON MASON PLOUMOND LOCH Appellant AND: SECRETARY, DEPARTMENT OF EDUCATION AND TRAINING Respondent JUDGE: JAGOT J DATE OF ORDER: 13 DECEMBER 2019 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JAGOT J: 1 This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal), Loch v Secretary Department of Education and Training [2019] AATA 1101. 2 In its decision, the Tribunal explained that Mr Loch had enrolled in two units of study at the University of Technology Sydney. On 22 June 2018, Mr Loch applied to UTS for the remission of his HECS/HELP debt under s 36-20 of the Higher Education Support Act 2003 (Cth) (the Act) in relation to unit 1 of his units of study. Subsequently, on 31 July 2018, Mr Loch also applied to UTS for remission of his HECS/HELP debt for unit 2. On 17 September 2018, UTS notified Mr Loch of its decision not to re-credit his HECS/HELP debt in relation to units 1 and 2. UTS affirmed these decisions on 2 October 2018. Mr Loch applied to the Tribunal to review these decisions. 3 The Tribunal set out the relevant statutory provisions in s 36-20 of the Act. As set out in [3] of the Tribunal's decision, the provisions relevantly provide that the provider has to be satisfied that special circumstances apply to the person. In particular, subs 36-21(1) and subs (2) of the Act provide as follows: (1) For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider 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; and (c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit. (2) The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines. Note: Guidelines made for the purposes of this subsection also have effect for the purposes of subsection 104-30(2) (re-crediting a person's FEE-HELP balance). 4 At [5], the Tribunal identified that the Minister had made the Higher Education Support Act 2003 – Administration Guidelines 2012 and that Chapter 3 of those administration guidelines dealt with "special circumstances" in the following terms: 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 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. 5 The Tribunal reviewed the relevant evidence on behalf of Mr Loch at [6]-[13]. At [14] and [15], the Tribunal also identified the evidence which Mr Loch had submitted in support of his applications for remission of the debts. At [16], the Tribunal said that it accepted that Mr Loch's condition was beyond his control, but was not satisfied that the condition made its full impact on Mr Loch on or after the census date for units 1 and 2, which was 9 April 2018. That finding, it seems to me, was reasonably open on the evidence before the Tribunal. 6 Accordingly, the Tribunal was not satisfied as to s 36-21(1)(b) that the circumstances did not make their full impact on Mr Loch until on or after the census date for the units of study. The Tribunal then dealt with s 36-21(1)(c) at [18], where it said this: While the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of his study, it is insufficient to establish that the circumstances were such that it was "impracticable" for this to be done; see Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 (3 August 2016). 7 It would seem that the Tribunal was applying the meaning given to the word "impracticable" from the decision in Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at [45], where the Tribunal said that "'[i]mpracticable' means 'not able to be done'". This meaning generally corresponds to paragraph 3.15.1 of the Administration Guidelines insofar as subpara (a) refers to medical circumstances such that the person is "unable to continue studying". Again, it seems to me that it was reasonably open to the Tribunal to reach the conclusion that it did, namely, that while it would have been difficult for Mr Loch to complete his requirements of study, it was not impracticable for him to have done so, as provided for in s 36-21(1)(c) and as set out in paragraph 3.15.1 of the Administration Guidelines. 8 On my review of the Tribunal's decision, I am unable to identify any question of law which arises which, if answered in Mr Loch's favour, would have the effect of vitiating the Tribunal's decision. I have also taken into account the fact that Mr Loch applied for leave to rely on fresh evidence. It appeared from discussions with Mr Loch during the hearing of this matter that he had been under the misapprehension that I had jurisdiction to determine the merits of his application for remission of the debt rather than his appeal being confined to a question of law in accordance with s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). This is why he wished to place before me additional evidence in relation to his medical condition and other matters. I explained to Mr Loch that the appeal was confined under s 44 (1) of the Administrative Appeals Tribunal Act to an appeal on a question of law from any decision of the Tribunal. It is for this reason that I explored with Mr Loch and the representative for the respondent whether there was any question of law arising from the Tribunal's decision. As I said, I have reached the view that there is no such question of law that can be identified. Mr Loch has made extensive written submissions in support of his application, but has done so on the basis of a misunderstanding that I would be able to determine the merits of his application, which I cannot do. 9 Otherwise, issues raised by Mr Loch have been fully addressed in the written submissions for the respondent. The contention that the Tribunal has acted outside its jurisdiction is fully answered by the submission on behalf of the respondent that the Tribunal is established by the Administrative Appeals Tribunal Act as a tribunal to exercise administrative powers and functions pursuant to Chapter 2 of the Constitution and is not a court exercising the judicial power of the Commonwealth pursuant to Chapter 3 of the Constitution. 10 The respondent submitted that the Tribunal appears to have made no error in its approach to the concept of it being "impracticable" for Mr Loch to have completed the units of study. I agree that nothing in the Tribunal's reasons for decision exposes any apparent legal error in the way in which the Tribunal dealt with the statutory requirements. 11 The respondent's submissions also refer to Mr Loch's contention that similar cases before the Tribunal had been resolved in favour of the applicants in those matters and that this should have occurred in his case. This contention, however, does not involve any question of law or potential legal error. 12 The submissions for the respondent also refer to Mr Loch's contention that the weight of evidence was in his favour and he was eligible for the fee refund. Again, this contention is based on the misconception that I am able to determine for myself the weight that should be given to evidence which was before the Tribunal when, in fact, the Tribunal alone is vested with the power to weigh the evidence. 13 As I have said, I have considered the Tribunal's reasons for decision and I am unable to ascertain any question of law arising from its reasons which would have the effect of vitiating the Tribunal's decision. Accordingly, it is my view that I have no option in this matter other than to dismiss Mr Loch's appeal. I certify that the preceding twelve (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 28 January 2020