Binns and Secretary, Department of Education

Binns and Secretary, Department of Education [2023] AATA 2988 (19 September 2023)
Division: GENERAL DIVISION
File Number(s): 2022/6688
Re:Thomas Spencer Binns
APPLICANT

AndSecretary, Department of Education
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:19 September 2023
Place:Adelaide

The decision under review is varied, such that it reads:
(1)the Applicant does not meet the requirements in s 36–20 of the Higher Education Support Act 2003 (Cth) for remission of HECS-HELP Debt for those 14 units of study with a census date before 1 January 2020; and
(2)the Applicant does not meet the requirements in s 97-25 of the Higher Education Support Act 2003 (Cth) for re-credit of the Applicant’s HELP balance for the amount of HECS-HELP assistance received for the one unit of study with a census date after 1 January 2020.

..........................[Sgnd].....................................
Senior Member B J Illingworth
Catchwords

HIGHER EDUCATION SUPPORT – HECS-HELP loan – student assistance – HECS-HELP debt – Flinders University – special circumstances – 12-month application period – remission – re-credit – decision under review varied
Legislation
Higher Education Support Act 2003
Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018
Cases
Bow and Secretary, Department of Education [2020] AATA 114
Brown and Secretary, Department of Education and Training [2015] AATA 518
Lushchayev and Secretary, Department of Education, Skills and Employment [2022] AATA 374
Montenegro v Secretary, Department of Education [2020] FCAFC 210
Thomson and Secretary, Department of Education, Skills and Employment [2020] AATA 4672
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
Secondary Materials
Higher Education Support (Administration) Guidelines 2022

REASONS FOR DECISION

Senior Member B J Illingworth
19 September 2023

INTRODUCTION

Thomas Spencer Binns (“the Applicant”) was a student at Flinders University in Adelaide, South Australia (“Flinders”). On 25 May 2022, the Applicant sought remission (and re-credit) of his HECS-HELP Loan Debt (“the Debt”) incurred for units of study failed between 1 September 2017 and 1 September 2020, pursuant to s 212–1 of the Higher Education Support Act 2003 (Cth) (“the Act”).
On 31 May 2022, Flinders refused the Applicant’s application for remission (and re-credit) of the Debt. On 26 June 2022, the Applicant sought review of that decision.
On 20 July 2022, the Senior Manager of Student Administration Services at Flinders upheld the original decision. On 16 August 2022, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the reviewable decision which application is now before the Tribunal.
The Applicant was self-represented. The Respondent was represented by Ms Subasha Prasad of Minter Ellison (“Respondent’s Counsel"). The Tribunal received into evidence the documents as listed in the Exhibit list, held on the Tribunal file.
BACKGROUND
The Applicant was born in 1997 and is currently 26 years of age. In 2012, at 14 years of age, he was diagnosed with Acute Lymphoblastic Leukaemia (“ALL”). He underwent treatment for two years. As a consequence of his treatment, he suffers from various conditions which impact upon his day-to-day life. He is now regarded as ‘free’ from ALL.
The Applicant first commenced his studies at Flinders in 2016.[1] In July 2016, the Applicant requested, and was granted, a HECS-HELP loan for a Bachelor of Media Arts.[2]
[1] Exhibit A, T70, p 176; T71 p 177; T65 p 164.
[2] Exhibit A, T71 p 177; Note: Applicant transferred from another degree, Exhibit A, T65 p 164.
The Respondent’s Statement of Facts, Issues and Contentions (“SoFICs”) included the following table, which sets out the units of study for which the Applicant has sought remission/re-credit of the Debt:[3]
[3]Respondent’s SoFICs, p 1–2 [1].

Study Period	Unit of Study	Census date	End date	Date outcome recorded	Application period end date
S1 2017	COMS1001 Academic and Professional Communication	31/03/2017	16/06/2017	05/12/2017	16/06/2018
S2 2017	SCME3004 History of Film Style	25/08/2017	03/11/2017	04/12/2017	03/11/2018
S2 2017	SCME2100 Media Policy	25/08/2017	03/11/2017	30/11/2017	03/11/2018
S2 2017	ENGL1102 Literary Interpretations	25/08/2017	03/11/2017	30/11/2017	03/11/2018
S2 2018	SCME2001 Television Studies	24/08/2018	02/11/2018	29/11/2018	02/11/2019
S2 2018	ENGL2145 Approaches to Popular Fiction	24/08/2018	02/11/2018	29/11/2018	02/11/2019
S2 2018	ENGL1102 Literary Interpretations	24/08/2018	02/11/2018	29/11/2018	02/11/2019
NS1 2018	SCME2061 Screen and Media Production, Research and Writing	19/07/2018	03/08/2018	04/12/2018	03/08/2019
S1 2019	ITAL3214 Italian Cinema	05/04/2019	21/06/2019	18/07/2019	21/06/2020
S1 2019	ENGL3211 Exploring Genres in Creative Writing	05/04/2019	21/06/2019	18/07/2019	21/06/2020
S1 2019	COMS1001 Academic and Professional Communication	05/04/2019	21/06/2019	18/07/2019	21/06/2020
S1 2019	SCME2100 Media Policy	05/04/2019	21/06/2019	18/07/2019	21/06/2020
S2 2019	SCME 2101 Australian/Indigenous Media	30/08/2019	08/11/2019	19/02/2020	08/11/2020
S2 2019	ENGL2145 Approaches to Popular Fiction	30/08/2019	08/11/2019	05/12/2019	08/11/2020
S1 2020	SCME2001 Television Studies	03/04/2020	19/06/2020	16/07/2020	19/06/2021

In the hearing, the Tribunal referred the Respondent’s Counsel to the above table. It contains a record of each unit of study that was the subject of the application before the Tribunal. Those units of study between 2017 and 2019 were the subject of an application for remission of the Debt, and the 2020 unit of study was, (or should have been) the subject of an application to re-credit the Debt.
The Tribunal referred the Respondent’s Counsel to the Applicant’s Transcript of Academic Record which refers to two further units of study the Applicant failed in 2020, namely, SCME2071 Introduction to Screenwriting; and SCME3074 Applied Screenwriting.[4] The Applicant advised he has subsequently completed both units of study and achieved a pass grade. His academic record no longer records a fail grade for those units.
[4] Exhibit A, T65 p 166.
As otherwise summarised in the Respondent’s SoFICs, the Tribunal accepts the background to each respective unit identified in the above table is as follows:
2017 Units of Study
In 2017, the Applicant enrolled in the Bachelor of Media Arts degree and completed an enrolment declaration.[5] In Semester 1 (“S1”) 2017, the Applicant enrolled in four units of study, and successfully completed and passed three of those units.[6] The Applicant failed COMS1001 Academic and Professional Communication, which fail was recorded on 5 December 2017.[7]
[5] Exhibit A, T4 p 38; T8 p 45.
[6] Exhibit A, T65 p 164.
[7] Exhibit A, T6 p 43; T8 p 45; T7 p 44.
On 12 March 2020, the Applicant contacted a topic coordinator and requested an opportunity to submit the remaining assessments for this unit, which will be discussed later in this decision. This request made by the Applicant was unsuccessful.[8]
[8] Exhibit A, T56 p 145–146.
In Semester 2 (“S2”) 2017, the Applicant enrolled in four units of study, withdrew from one unit, and failed three units of study. The Applicant failed SCHME2100 Media Policy, ENGL1102 Literary Interpretations and SCME3004 History of Film Style, which fails were recorded on 30 November 2017 and 4 December 2017.[9]
[9] Exhibit A, T11 p 51; T17 p 66; T14 p 58.
2018 Units of Study
On 16 February 2018, the Applicant completed an enrolment declaration, and enrolled in four units of study for S1 2018.[10] The Applicant completed and passed all four units, achieving two credit and two distinction grades.
[10] Exhibit A, T19 p 68.
In S2 2018, the Applicant enrolled in four units of study, passed one unit, and failed to complete three units of study. The Applicant failed SCME2001 Television Studies, ENGL2145 Approaches to Popular Fiction and ENGL1102 Literary Interpretations, which fails were recorded on 29 November 2018.[11]
[11] Exhibit A, T22 p 75; T25 p 82; T28 p 88.
Ms Matthews, Discipline Lead, Creative Writing at Flinders, in an email dated 24 August 2022 to Ms Kreci, Student Finance and Scholarship Officer at Flinders, in relation to the Applicant’s 2018 units of study, said:
“According to my records, in 2018 I reached out to [the Applicant] well after all deadlines to ask him why he hadn't submitted any work, and he responded by emailing me his final assignment, which we marked, but which failed. He queried the late points, but the grade stood.
I have no correspondence from [the Applicant] in 2019 that I can find, except an email requesting I waive the pre-requisites for him to enrol in ENGL3210”.[12]
[12] Exhibit A, T65 p 168.
During a non-semester period in 2018, the Applicant additionally enrolled into SCME2061 Screen and Medial Productions, Research and Writing, and a fail grade was recorded on 4 December 2018.[13]
[13] Exhibit A, T30 p 94; T32 p 96; T31 p 95.
2019 Units of Study
The Applicant completed a further enrolment declaration on 20 December 2018 for his Bachelor of Media Arts. The Tribunal infers this was in relation to subjects to be enrolled in for 2019.[14]
[14] Exhibit A, T34 p 98.
In S1 2019, the Applicant enrolled in five units of study, and failed to complete four of those units. The Applicant failed COMS1001 Academic and Professional Communication, ENGL3211 Exploring Genres in Creative Writing, ITAL3214 Italian Cinema, and SCME2100 Media Policy. A fail grade for the units was recorded on 18 July 2019.[15]
[15] Exhibit A, T37 p 105; T40 p 111; T43 p 118; T46 p 125.
In S2 2019, the Applicant enrolled in three units of study. He successfully completed one subject and received a distinction grade. He failed two units, being SCME2101 Australian/Indigenous Media, and ENGL2145 Approaches to Popular Fiction, which fail grades were recorded on 5 December 2019 and 19 February 2020 respectively.[16]
[16] Exhibit A, T65 p 166; T51 p 136; T54 p 143.
During a non-semester period in 2019, the Applicant enrolled in SCME2017 Asian Cinema. He successfully completed this subject and received a high distinction grade.[17]
[17] Exhibit A, T65 p 166.
2020 Units of Study
In S1 2020, the Applicant enrolled in three units of study. He successfully completed one unit of study receiving a distinction grade but failed the two other units of study. The Applicant has only sought remission (re-credit) of one of those units, being SCME2001 Television Studies which fail grade was recorded on 16 July 2020.[18]
[18] Exhibit A, T65 p 166; T59 p 154–156.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
There is no dispute the Applicant was entitled to, and incurred, the Debt for the nominated units of study. There is also no dispute the Applicant did not make the application for remission (and re-credit) of the Debt before the end of the application period. The issues to be determined by the Tribunal in relation to the remission (units of study with a census date prior to 1 January 2020)/re-credit (units of study with a census date post 1 January 2020) of the Debt are as follows:
(a) whether the Tribunal is satisfied that special circumstances exist (in accordance with ss 36–20(1)(d) & 97–25(2)(c) (census dates prior and post 1 January 2020 respectively) and as defined in ss 36–21 & 97–30 (census dates prior and post 1 January 2020 respectively) of the Act); and
(b) whether the Tribunal is satisfied that it was not possible for the applications to be made before the end of the period.
In determining whether special circumstances exist, the Tribunal has also had regard to the Higher Education Support (Administration) Guidelines 2022 (“the Guidelines”).
LEGISLATION AND GUIDELINES
The legislation applicable to this matter, relevant to the issues to be determined by the Tribunal reads as follows:
Remission of the Debt
In respect to those units of study in which the Applicant was enrolled with a census date prior to 1 January 2020, s 36–20 of the Act applies to the following extent, namely:
(1)“A higher education provider must, on the *Secretary's behalf, determine that this section applies to a person if:
…
(d) the provider is satisfied that special circumstances apply to the person (see section 36-21); and
…
(f) either:
(i) …
(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.”
For the purpose of s 36–20(1)(d) of the Act, ‘special circumstances’ is defined in s 36–21 of the Act 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.”
Re-Credit of the Debt
In respect to those units of study in which the Applicant was enrolled with a census date after 1 January 2020 s 97–25 applies[19] to the following extent, namely;
…
(2)“A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *HECS-HELP assistance that the person received for a unit of study if:
…
(c) the provider is satisfied that special circumstances apply to the person (see section 97-30); and
…
(e) either:
(i) …
[19] Note: as per Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018 (No. 76, 2018) Sch 3, Pt 2, s 144(1)(d); (2).
(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.”
The term ‘special circumstances’ as defined in s 97–30(1)(a), (b) and (c) of the Act are identical to the matters referred to in s 36–21(1)(a), (b) and (c) of the Act.
The Respondent submits the only issue for the Tribunal to consider, in respect of the application period, is whether the application period should be waved on the basis that it was not possible for the application to be made within the application period.[20] The Tribunal agrees with that submission.
[20]see Respondents SoFICs p 13 [53].
Higher Education Support (Administration) Guidelines 2022
The Guidelines are a legislative instrument made pursuant to ss 159–5 and 238–10 of the Act to inform the decision-maker, and in this matter the Tribunal, about matters to be considered when determining whether ‘special circumstances’ apply.[21] Part 3 of the Guidelines provide as follows:
[21] Exhibit A, T73 p 214–236.
Circumstances beyond a person’s control
(1)   “For the purposes of paragraphs 36-13(3)(a) and 36-21(1)(a) of the Act, a higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which the provider reasonably considers is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
(2)   The situation referred to in subsection (1) must be unusual, uncommon, or abnormal.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.”
Circumstances that did not make their full impact until on or after the census date
(1)   “For the purposes of paragraphs 36-13(3)(b) and 36-21(1)(b) of the Act, 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;
(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.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.”
Circumstances that make it impracticable for the person to complete the requirements
(1)   “For the purposes of paragraphs 36-13(3)(c) and 36-21(1)(c) of the Act, 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 if the person undertook, or was to undertake, the unit in the following kinds of circumstances:
(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;
(b)   family or 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;
(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.
(2)   The requirements for a unit of study referred to in subsection (1) are that the person:
(a)   undertakes the necessary private study required, or attends sufficient lectures or tutorials or meets other compulsory attendance requirements in order to meet their compulsory course requirements;
(b)   completes the required assessable work;
(c)   sits the required examinations; or
(d)   completes any other course requirements.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.”
The Full Court of the Federal Court in Montenegro v Secretary, Department of Education,[22] His Honour, Flick J stated at [25]:
“Where a provision thus requires that something is to be done ‘in accordance with’ [the Guidelines], what is required is that [the Guidelines] themselves become a ‘substitute regime’ which is to be complied with.”
[22] [2020] FCAFC 210.
Issue with the reviewable decision
As can be seen from the legislative summary above, the units of study which are the subject of the within application relates to a legislative scheme that has changed over the period when the Applicant was at Flinders. In respect of the units of study in which the Applicant enrolled with a census date prior to 1 January 2020, s 36–20 applied and the question of a remission of the Debt fell for consideration. In respect of a unit of study in which the Applicant enrolled with a census date post 1 January 2020, s 97–25 applied and the question of a re-credit of the Debt fell for consideration.
The test and the factual considerations to determine whether the Applicant satisfied the criteria for a remission or re-credit of the Debt remain the same.
Hence, there were 15 units of study under consideration on review. The first 14 units of study were units in which the Applicant enrolled with a census date prior to 1 January 2020 and therefore s 36–20 of the Act applied in determining whether there should be a remission of the Debt in relation to each unit of study. The final unit of study was a unit in which the Applicant enrolled with a census date post 1 January 2020 and therefore s 97–25 applied in determining whether there should be a re-credit of the Debt in relation to that unit of study.

The Applicant applied to Flinders to reconsider the original decision, namely the “unapproved remission”[23] in relation to all 15 units of study. It is understandable that he did so in those terms because the original decision-maker did not distinguish between a remission application in respect of the first 14 units of study, and a re-credit application in relation to the final unit of study.
[23] Exhibit A, T1 p 18.
In reviewing the original decision, the decision-maker wrote, “There is insufficient evidence to demonstrate why your remission application could not have been submitted within the required 12-month timeframe…your remission appeal is denied…”[24] That decision related to all 15 units of study, the subject of the Applicant’s application which is now before the Tribunal.
[24] Exhibit A, T64 p 162.
The reviewable decision-maker also failed to differentiate between those units of study in the decision to which ss 36–20 and 97–25 applied, and only refers to the remission application as opposed to the remission and re-credit application.
Despite that failure, the Tribunal is satisfied that both decision-makers were considering all 15 units of study and the relevant factual circumstances relevant to the decision, albeit without referring to the legislative distinction.
The Respondent has submitted the Tribunal should infer the reviewable decision-maker, despite not making the formal distinction within the terms of the decision, nonetheless applied the correct legislative provisions and did in fact differentiate between them.
The Tribunal respectfully rejects that submission. The reviewable decision only refers to the ‘remission application’ with no mention of the re-credit of the Debt. The original decision appears to have fallen into error by failing to make the distinction, and the reviewable decision-maker has been influenced by the original decision and failed to appreciate the distinction and made the same mistake.
Nonetheless, that error is not fatal to the jurisdiction of the Tribunal. The reviewable decision-maker gave considerations to all of the facts relevant to each of the 15 units of study and as the application before the Tribunal is a hearing de novo, the Tribunal will consider all of the relevant facts to determine and apply the correct legislative provision to decide whether the Applicant is entitled to a remission of the Debt in relation to each of the 14 units of study, and a re-credit of the Debt for the last unit of study.
THE EVIDENCE
Respondent’s Opening
The Applicant first made a request for remission/re-credit to Flinders in May 2022. This request was made more than 12 months after the application period end date of all relevant units of study. Accordingly, to be successful for remission/re-credit of the Debt, the Act requires the Applicant must demonstrate:
(a)special circumstances existed at the time he undertook each unit of study, namely:
(i)the circumstances were beyond his control;
(ii)they did not make their full impact on him until after the census date; and
(iii)those circumstances therefore made it impracticable for him to complete the requirements for each unit of study; and
(b)the Applicant was not able to make the application for remission/re-credit within the 12-month period from the census date for each unit of study.
The Respondent submits the Applicant has failed to demonstrate that special circumstances exist or that he could not make the applications for remission/re-credit of the Debt within the prescribed application period for each unit of study.
Special Circumstances
For the Applicant to establish special circumstances exist, he must satisfy the special circumstances test, particularly the aspect of impracticability. The Respondent submits the Tribunal has previously indicated there is a high bar to establish what circumstances meet this test.
The Respondent submits the Applicant has failed to demonstrate:
(i)his circumstances were beyond his control;
(ii)he was unfamiliar with the enrolment and withdrawal processes;
(iii)his circumstances made their full impact on him after each census date (in the absence of contemporaneous evidence that clearly indicates a deterioration in the Applicant’s health to the relevant census date in each unit of study); and
(iv)it was impracticable for him to complete each unit of study (especially in the current circumstances where there is evidence he has completed other units of study during this time).
The Respondent accepts the Applicant received support for his application from staff and the Dean of Education. The Respondent also accepts the Applicant has experienced poor health following cancer treatment in 2012 and was diagnosed with mental health conditions in 2020 and 2021.
However, the Respondent submits there is insufficient evidence for the Tribunal to be satisfied the Applicant’s circumstances meet the special circumstances test.
Unable to make the application
The Respondent submits the Tribunal has previously established that an applicant must demonstrate there was a very serious constraint on his or her ability to act such that the application for remission/re-credit of the Debt could not be made within the relevant application period.
The Respondent submits the Applicant’s evidence demonstrates, at the time of the relevant units of study, the Applicant was:
(i)completing other units of study;
(ii)participated in overseas travel to Hong Kong for a unit of study;
(iii)continued to enrol in other units of study;
(iv)withdrew from a unit of study in S2 2017; and
(v)reached out to topic convenors and lecturers to seek additional time to provide assignments or seek to wave enrolment criteria.
The Respondent submits these factors demonstrate the Applicant failed to establish he could not make the application for remission/re-credit of the Debt within the relevant 12-month application period for each unit of study.
The Applicant’s Case
The Applicant submits he was unable to complete the applications for remission/re-credit of the Debt within 12 months after each unit of study. The Applicant submits the following demonstrate he was unable to complete the applications within 12 months, and he therefore meets the special circumstances test:
(i)throughout the units of study, the Applicant was dealing with health issues that commenced when he was diagnosed with Acute Lymphoblastic Leukemia (“ALL”) (in 2012), the impact of that illness, its treatment and side effects (including his Generalised Anxiety Disorder (“GAD”) diagnosis) gave rise to mental blockages and an avoidance barrier, which were insurmountable and are demonstrated by the topic grades of 2017–2020 and 2020–2022;
(ii)he also suffered Avascular Necrosis (“AN”) as a consequence of his cancer treatment. This condition results in “patches of dead bone” within both knees which caused pain and fatigue;
(iii)he was suffering from debilitating chronic and excessive worry (linked to his GAD diagnosis) which prevented him from completing the applications;
(iv)he suffered debilitating avoidance and was unable to face conflict.
The Applicant’s Evidence
The Applicant was born in 1997. On 1 April 2012, when he was 14 years of age, the Applicant was diagnosed with ALL. He was under treatment for two years, including eight months of intravenous chemotherapy. His condition has not relapsed, and he is regarded as ‘free’ from ALL.
The Applicant continues to suffer various conditions as a result of his illness and treatment. He suffers from AN which was caused by the steroid treatment he received during his illness. This, he said, it is a common side effect for children who receive this treatment because their bones are still developing. He suffers from this condition in both knees. He started to realise he had a problem with his knees when he was 15 or 16 years old. He noticed sharp pain in his knees. He received treatment for the condition, which was not successful. He said he suffered from patches of dead bone in both knees, which impacts upon his walking and sometimes he must skip activities because of the pain. The condition also causes persistent general fatigue. These symptoms will impact upon his day-to-day life, which can sometimes be unpredictable.[25]
[25] Exhibit A, T1 p 14–16.
ALL has impacted upon the Applicant mentally. He has persistent “brain fog”. He struggles with memory. These symptoms impacted heavily on his general productivity.[26] In late 2020, the Applicant was hospitalised following a suicide attempt and he has since been diagnosed with GAD. The Applicant said his condition impacted on his studies at Flinders. He sought assistance through a disability access plan, was open with topic coordinators about his condition, the symptoms, and their impact upon him. He received support from a psychologist.
[26] Exhibit A, T1 p 14.
Despite his health issues and difficulties with his symptoms, he remained at Flinders and pursued his studies. He said it was his passion that drove him, and since 2020 he has, with the assistance with his topic coordinators, including Mr Daryl Westley (who was the Flinders Disability Academic Advisor) negotiated new dates to complete certain units of study. He has successfully now completed all his assessments and graduated from Flinders with a Bachelor of Media Arts degree.[27]
[27]see Exhibit A, T1 p 15.
The Applicant said he completed year 12 in 2015. Up to that point in time he had not been diagnosed with GAD, but he had been receiving psychotherapy from a therapist, with the Youth Cancer Service during his treatment, and intermittently after that. The Applicant formed limited friendships and was not an “extrovert”.
The Applicant was referred to his Transcript of Academic Record.[28] He started university in 2016. In S1 he was enrolled in another degree, and then transferred his Bachelor of Media Arts. In 2016, he passed three out of three units of study, with one credit and two distinction grades.[29] He said his health was not as bad as in later years. He said he was “ok” but still needed the help of compassionate lecturers. At that point he was capable of completing units of study.
[28] Exhibit A, T65.
[29] Exhibit A, T65 p 164.
In 2016, he attributed his fatigue and issues to AN, which was the easiest to recognise because of pain. Hence, at the time he believed it was a pain issue. Now he believes it was his GAD impacting him.
In the entire 2017 year of study, the Applicant had four fail grades, a distinction, credit, and a pass grade. He did not pass any S2 2017 units of study. He also withdrew, online, from two units of study.[30] He could not recall whether that was an easy or difficult procedure. The Applicant said in the beginning of the cycle of compounding problems, the major factors impacting upon him developed and he started to worry about things and “it got worse”. It was S2 when he had three fail grades and withdrew from two units of study that he described it as attempting to perform a bench press and “someone was adding more weights to the bar”. He was not as bad at that stage, such that he could not do something about the units of study, but it was starting to overlap, and the excessive worry took hold, and his condition got worse.
[30] Exhibit A, T65 p 164.
When asked why he did not withdraw from those other units of study in S2 2017, the Applicant said he thought he would still be able to complete those units of study up to and after the census date. He would be required to submit academic papers as part of the study. The Applicant was referred to the academic end date for each of the failed units of study contained in the table, referred to at paragraph seven above (for one unit, on 16 June 2018, and for the rest, 3 November 2018). When asked why he did not deal with those units of study, he said he still had S1 fail weighing on his mind, and this prevented him from taking any action in relation to the units of study. The Tribunal notes however, that the Applicant withdrew from units of study SCME2201 Interaction Design and SCME2061 Screen and Media Production, Research and Writing in S2 2017.[31]
[31] Exhibit A, T65 p 164
When asked why he was prevented from taking any action, he said it was the way his GAD works. When he excessively worries about something, the issues keep compounding and it will more likely cause him to avoid the problem, rather than do something about it. He said, “of course the rational thing to do was to do something about it”, but the way the GAD impacted upon him, he was not acting rationally. It became a repeating pattern through following semesters.
The Applicant agreed he did not take the appropriate action within the required 12-month period, but it was because of his avoidance of issues caused by GAD. The Applicant explained and gave an example of another situation in his life where this occurred. He said, in late 2020, he was running out of money. The simple fix was to contact Centrelink. But he did not do that and nearly ran out of money and attempted suicide. There was a lack of self-preservation. He received treatment in late 2021, and that was when he started to deal with the issues he was facing.
The Applicant was referred to his Transcript of Academic Record for S1 2019. He failed four units of study, yet received a distinction for the other unit of study, namely, SCME3060 Screen Production Techniques C. When asked to explain, the Applicant said that unit of study is group based, and focused on collaboration, rather than theory (as was the focus of the other units of study). He was asked why he did not withdraw from the other subjects. This, he said, was a bad year judging by the fails recorded, which caused a big weight to be put on him. He explained the excessive worry is a condition of GAD. He would ruminate on the previous years’ fail grades, and this would be compounded as each semester added additional mental weight. This then rendered it less likely he would do anything about it. The Applicant said he needed exterior help to change.
The Applicant agreed that in March 2019 he went to Hong Kong as part of his studies. The trip was in about week two S1 2019. The Applicant said he was ok, but physically “was the main thing”. He travelled in a group and was not on his own. Navigating Hong Kong “was the worst bit” because of the pain from the AN and fatigue. He was in Hong Kong for about 10 days.[32]
[32] Note: Applicant said he was intending to travel to Hong Kong departing 14 March to 30 March 2019: Exhibit A, T47 p 128.
After the Applicant returned from Hong Kong, things remained the same. Insofar as his Transcript of Academic Record for 2019 records, the Applicant obtained a high distinction grade for SCME2107 Asian Cinema, the Applicant did not complete the majority of the assessments required for this unit of study until early last year, in 2021.[33]
[33]Exhibit A, T65 p 165.
The Tribunal asked the Applicant how he was able to complete the 2019 unit of study in 2021, which would have been approximately one year after the relevant application period end date. The Applicant explained this was part of the support he obtained in late 2020 through disability support, Flinders and his GP. They looked at what aspects of the course he had to complete, and he was given the opportunity to complete the unit of study. That option was not available to the Applicant in respect of other units of study. He then explained he did not know it was an option and it was only after a drastic event, namely his attempted suicide, that this option became available, and he completed units of study within his own time.
The Applicant did attempt to negotiate an arrangement to complete the other units of study. He said, in S1 2020, he tried to complete his remaining 2019 units of study outside the 12-month period and submitted the remaining assessments, but they were not accepted to be marked, and because of that he did not turn his mind to attempting to similarly complete his other outstanding units of study.
The Applicant also said he did not turn his mind to withdrawing from units of study, as he had previously done in 2017. He said his mind was telling him “it was not possible. He couldn’t do it on his own.” In his mind, he was thinking he would pass the current semester units of study, and then he would be able to revisit the failed subjects. He agrees the thought process was not rational. The Applicant said that was the process of thinking that continued until 2020, when he attempted suicide, and then things were put in place to assist him to complete his studies.
The Applicant said he was first diagnosed with GAD in late 2020. The Applicant said that he tried to obtain an indication of he was first diagnosed with GAD from his psychologist, but she all she said was that she already knew he suffered from the condition. The Applicant was not aware of his GAD diagnosis until after his attempted suicide.
The Centrelink Medical Certificate, of Dr Leong, dated 27 April 2022,[34] gave a diagnosis of Major Depression. The date of onset was 1 November 2020. The Applicant was unfit for work or study from 27 April 2022 to 27 July 2022. The Applicant was referred to that certificate. The Applicant said at the beginning of 2022 he was back at Flinders but had spent the preceding one and a half years completing various units of study. He had submitted all assessments in 2022 and graduated late that year. The Tribunal notes the Applicant had to re-enrol and complete outstanding assessments in some units of study.
[34] Exhibit A, T1 p 10.
During the period the Applicant had difficulty with his academic study, he was in communication with Mr Wesley, Senior Lecturer and College Disability Academic Advisor at Flinders, who assisted the Applicant and negotiated with unit of study coordinators to enable the Applicant to pass certain outstanding units of study. The Applicant said he assumed Mr Wesley would help with obtaining remissions (and the re-credit), but in the end that did not occur. Mr Wesley did indicate he and the Dean of Education supported the Applicant’s application for remission (and re-credit) of fees so the Applicant thought “it would be alright” and did not assume a level of urgency.[35]
[35] Exhibit A, T1 p 9.
The Applicant said he did not appreciate the importance of the 12-month restriction from the census date, and the legal implications of making such applications after the census period end date. The Tribunal asked the Applicant why it took until May 2022 to apply for remissions (and re-credit). The Applicant said that he started the discussion with Mr Wesley in 2021, but he did not understand or could “not see behind the curtain” of the bureaucracy and progress to get the required results. He was receiving the supports he needed negotiating the completion of certain units of study in 2021. He did not think he needed to deal with this other issue at the time.
Further, there was a period in the second half of 2021 when it became difficult to get in contact with Mr Wesley, and he was the Applicant’s only advocate. Mr Wesley had some personal matters, and the Applicant did not understand the urgency of the time limits. He regarded Mr Wesley as an integral aspect of his communications with Flinders and the Applicant did not take any further action in Mr Wesley’s absence. Mr Wesley was dealing with those units of study that are the subject of the application for review.
The Applicant said when things did not progress, with the assistance of “Canteen” (Australian national support organisation for young people living with cancer), he finally received a response to proceed through the formal process with regards the remission/re-credit of the Debt.
In cross-examination, the Respondent’s Counsel confirmed with the Applicant there were two issues, namely, whether:
(i)the Applicant made the applications for remission/re-credit within the 12-month period from the census date of each unit of study, and
(ii)did special circumstances exist (in respect of each unit of study) and did the Applicant’s circumstances make it impracticable for him to complete each of them.

In regards the 12-month period within which to make the application for remission/re-credit of the Debt, the Applicant said he could not be sure when he first became aware of the process.
The Applicant agreed he started the process for remission/re-credit of the Debt mid-2021. He was referred to his statement in which he said,
“As soon as early 2021 I resumed the remission process that I had started in mid-2020 with gathering my supporting documentation (evident from my 12/06/2020 haematologist letter in my original application) letter and overcoming the associated mental barriers”. [36]
The Applicant agreed he knew of the remission (and re-credit) process in mid-2020. The Applicant said he was able to do assessments for units of study well after the census date. At that stage, he was receiving assistance from Mr Wesley, and he thought it was going through an internal process at that time.
[36] Exhibit B, T1 p 19.
The Applicant was again referred to his statement. He said,
“The time gap may seem extreme, but I do want to stress that once I felt like I had confirmation that a remission was likely this issue was put on the backburner as I was entirely focused on what I deemed to be the most pressing matter–the incomplete assessments–while also continuing to work on my mental outlook throughout 2021”.[37]
The Respondent’s Counsel suggested to the Applicant that he prioritised the assessments for his current units of study (at that time) and put the applications for remission/re-credit of the Debt to one side, to be dealt with at a later date. The Applicant did not agree with that proposition because he believed it was something being worked on “behind the curtain”. He believed others (namely, Mr Wesley) were dealing with it, so he did not have to.
[37] Exhibit B, T1 p 20.
The Applicant was further referred to his statement. He said,
“Once I had gotten to the point of completely finalising my remaining assessments, I more actively pursued a remission of fees/grades once again”.[38]
The Respondent’s Counsel suggested that was different to someone else taking care of the remission/re-credit. The Applicant said he thought this was being looked after because of his contact with Mr Wesley. By this time, he realised his only option was to go through the formal process.
[38]Exhibit B, T1 p 21.
The Applicant did not accept it was his Debt, and he was responsible and should have taken an active role in pursuing the remission/re-credit of the Debt. He believed there was nothing further he had to do, and others were looking after it for him. He believed the next steps would be made known to him by Mr Wesley. He did not enquire with Flinders directly or look on their website. He relied on Mr Wesley and “Canteen” to help him. He referred to difficulties he had accessing Flinders records (which the Tribunal understands to be the student portal). He ruminated for a week, and it was only with the assistance of support services following it up with Flinders that he learnt his password had expired and it was resolved. He was reliant on the help of others.
In S1 2017, and the unit of study for which the Applicant sought remission, the Respondent’s Counsel referred to the period that followed, including that he enrolled in further units of study and in S1 2018 he had two credit grades and a distinction. It was put to the Applicant this indicated he was not “unable” to make an application within the 12-month period. The Applicant said the same issues were present, but it was not as bad as S2 2018 through to 2020 when his condition became more severe.
The Tribunal notes in S2 2018, the Applicant had four fail grades and one pass.
In relation to those subjects he completed, after the relevant study period had finished, the Applicant was referred to the S2 2018 pass grade for SME2000 The Hollywood Industry. The Applicant was also again referred to his statement. under heading “Success and Fail, one and the same”.[39] The statement contained an email from Mr Godfrey, dated 4 February 2019, enquiring about the Applicant’s incomplete grade for that subject from the previous year; that the second essay had not been submitted, and the Applicant was sitting on a grade of 56 percent. Mr Godfrey queried if the Applicant wanted the opportunity to submit the second essay or accept the grade of 56 percent. The Respondent’s Counsel submitted this indicated the Applicant had achieved a pass grade. The Applicant said he did a group presentation and an essay which he accepted he completed early S2 2018 when his condition was not having the level of impact that developed throughout the rest of that year.
[39] Exhibit B, p 4.
The Respondent’s Counsel referred the Applicant to his Academic Record for 2019. In 2019, some units of study were completed successfully, and, in March, the Applicant travelled to Hong Kong as part of his degree. The Respondent’s Counsel also referred to email correspondence which records, in 2018, the Applicant was communicating with Dr Matthews. He had provided an assignment after the deadline and in 2019. Subsequently, in 2019, he reached out to Dr Matthews by email and requested she waive the pre-requisite to enrol in another unit of study.[40] It was put to the Applicant this indicated he was capable of applying for remission /re-credit of the Debt within the prescribed 12-month period. The Applicant said applying for remission/re-credit of the Debt, compared to doing other things, such as travel, are not the same. He had the weight of excessive worry about failed subjects from past semesters which impacted on him. Going to Hong Kong was not a monumental task when compared with filling out an application for remission/re-credit of the Debt. There was a mental barrier surrounding that process.
[40] Exhibit A, T66 p 168.
The Applicant was not sure if he was aware, in 2018 or 2019, he could apply for remission/re-credit of the Debt. He said the process was shown to him, but he could not be sure if that was before March 2019. He could not say when it occurred. He said he was probably shown there was a path for remission/re-credit of the Debt. With the support from psychologist Ms Collins, and “Canteen” supports, from late 2019 he was trying to overcome the mental barriers impacting upon those things he was meant to do. In mid-2020 he obtained supporting documents from his Haematologist.[41] The Applicant said he knew he needed to do something, but things went downhill into 2021 and he could not do it.
[41]Note: the Tribunal received a letter from his Haematologist, Dr Osborn, dated 26 June 2022.
The Applicant was referred to units of study in S2 2019, and the 12-month period which ended on 8 November 2020. In that 12-month period in 2020, the Transcript of Academic Record refers to eight units of study.[42] He had one pass, one credit, three distinctions and three fail grades. The Applicant said they were completed in early 2020.
[42] Exhibit A, T65 p 166.
The Applicant was again referred to his statement under headings, “Success and Fail, one and the same” and “Disability Access Plan”.[43] The Respondent’s Counsel asked whether the Applicant completed the units of study between late 2019 to the end of 2020. The Applicant initially said, other than SCE3100 Screen and Media Practicum, he completed the balance of the subjects in 2021. Albeit the Transcript of Academic Record shows the units of study being completed in 2020. The Applicant said 2020 was the year of enrolment, not completion. However, he subsequently acknowledged that the unit of study, SCME3071 Screen Production Techniques 8 for which he achieved a distinction grade was completed in 2020. SCME3072 Screed Production Techniques 9 for which he received a distinction grade, was completed in early 2021.
[43] Exhibit B, p 4–5.
The Applicant said that comparing his pass grades to failing to apply for remission/re-credit of the Debt were different because of the mental weight his failures had on him. They compounded, and he was mentally unable to make the applications for remission/re-credit. Most of the subjects that were not “group based” were failures and once he received the support he did need, things improved.
The Respondent’s Counsel suggested the Applicant prioritised completion of units of study over administrative tasks. The Applicant said this is linked to his anxiety that was overwhelming him. His GAD meant, he looked upon applying for remission/re-credit of the Debt as a “doomsday” and thought it was a worst-case scenario, and that is how it was impacting him at the time. It was an overwhelming thought. Now he recognises that the rational approach was the remission process was a priority.
In S1 2020, the Applicant enrolled in one unit of study with an application period end date of 19 June 2021. In the 12-month period before the end date, he thought Mr Wesley was dealing with the remission/re-credit. He did not think he was achieving the necessary work in relation to his assessments. He still had mental barriers impacting upon him. He did not complete treatment with psychologist, Ms Num, until March 2021.
The Applicant said his condition was multi-faceted. The actions he would take would fluctuate but would be on a general downward trend. The thoughts that were real barriers and orders of completion. He needed to be successful before he could deal with his failures. Each semester was half a year in length. When the census date passed, then the level of worry for the Applicant would increase.
The Applicant was unable to say when he was diagnosed with GAD. He was diagnosed after November 2020. He remembered taking a number of tests.
The Respondent’s Counsel asked why he kept enrolling if the previous semester ended poorly; for example, in S1 2019 he enrolled in six units of study, which is higher than the usual study load. The Applicant said that was the irrationality of the mental processes with GAD. His thought was to be successful. He said certain mind thoughts had to be addressed before he could deal with others. It seemed rational at the time, which in hindsight it was not. He did not know how he was allowed to register for six units of study.
The Tribunal referred to the GAD diagnosis that occurred much later and after the attempted suicide and asked how long it is said he was suffering GAD. The Applicant could not answer the question. The Tribunal referred to the report of psychologist, Ms Num, dated 27 April 2021, which reads:
“Precipitating factors to recent decline inc difficulties within academic studies and uncertainty about vocational future. Maintaining factors to distress inc ongoing academic requirements, lack of family/pier support and involvement (and difficulty navigating this social area due to MH issues), ongoing associated pain/fatigue + avoidant personality style, ambivalence about structured treatment modalities and lack of recognition of the severity of his recent mental health deterioration (risk of death via overdose)”.[44]
The Tribunal said this was a report in 2021 and inquired whether there any diagnosis’ linked to 2019 that gave explanation about his health. The Applicant said he attempted suicide in 2020. He said mental health is different, the timeline cannot be fixed, for example, like knowing when you have broken your leg. Mental health is different.
[44] Exhibit F, p 1.
The Respondent’s Counsel suggested he was able to perform the administrative function of enrolling into units of study and referred to the screenshot of his enrolment in COMS1001 Academic and Professional Communication on 7 February 2017.[45] The Respondent’s Counsel also referred to a screenshot of his enrolment in ENGL1102 Literary Interpretations on 31 July 2017.[46] It was put to the Applicant he could access and log on to the necessary unit of study and enrol. The Applicant said he could enrol but there was an order of doing things. Therefore, he needed success before dealing with other matters. Enrolling was the first step in the order of events. Application for remission/re-credit of the Debt was much later in time and he was not able to deal with until he had received the intensive treatment.
[45] Exhibit A, T7 p 44.
[46] Exhibit A, T11 p 52.
The Applicant agreed that having performed poorly in S1 and enrolling in units of study in S2 he was setting himself up for failure. But he did not see it that way at that time. Now he accepts it was not rational and it led to his attempted suicide.
The Applicant said he needed treatment, and he finally got it after his attempted suicide. He can now take rational steps. He could not do that on his own. That was the treatment he received late 2020 and into 2021.
At the close of the evidence, the Applicant asked if the Tribunal would like him to ask Ms Num if she can say when he was first suffered GAD. The Tribunal said that the medial evidence/reports provided did not give the Tribunal any assistance about the developmental process which culminates in GAD, whether it develops over time to the point when it can be diagnosed. Nor was there evidence of the consequence of GAD, and its impact on a person’s mental processes and mental acuity.
The Tribunal adjourned the hearing to give the Applicant an opportunity to obtain further evidence from his psychologist to address those issues, including whether it was a condition that rendered him incapable, or he was unable (due to the impacts of GAD) to perform the administrative function of applying for remission/re-credit of the Debt.
The Applicant did not provide any further medical evidence.
CONSIDERATION
In evidence, the Applicant conceded that, in relation to the subjects he sought remission of in 2017, namely, COMS1001 Academic and Professional Communication, SCME3004 History of Film Style, SCME2100 Media Policy and ENGL1102 Literary Interpretations, it may not meet the ‘special circumstances’ criteria in the Act and would therefore not meet the requirements to receive a remission of the Debt. Despite the concession, this is still a matter for the Tribunal to consider according to the evidence, and accordingly, has turned its mind to the 2017 units, all other units of study and the threshold criteria.
Special Circumstances
In determining whether special circumstances exist for those units of study between 2017 and 2020, the Tribunal is to consider whether the Applicant’s circumstances were beyond his control, whether they did not make their full impact upon him until after the census date of each unit of study, and whether those circumstances made it impracticable for him to complete the requirements for each unit during the study period. In considering each of those abovementioned considerations, the Tribunal has considered the Guidelines (which are applicable for units of study with a census date both prior and post 1 January 2020).
The Guidelines provide that the circumstances would be beyond the Applicant’s control if the failure of making an application for remission/re-credit of the Debt for each unit of study was not due to the Applicant’s action, or in action, either directly or indirectly, and was because of circumstances for which he is not responsible.
The Applicant did, throughout his relevant academic career, demonstrate that despite his personal issues, he managed to repeatedly navigate the Flinders online enrolment procedures, withdraw from units of study, travel overseas as part of his study, enlist the help of others to assist in the remission/recredit of the Debt and achieved a high distinction, distinction, credit and passes for a number of units of study, while also, over the same period of time, failing the units of study the subject of this application and referred to in the abovementioned table at paragraph seven of this decision.
Those factors, on their face, would, absent of other acceptable evidence, tend to rebut the Applicant’s entitlement to the remission/recredit of the Debt, and would tend to suggest that the failure to comply with the statutory and Guideline provisions, was the result of poor management or avoidance, rather than, amongst other things, the enlivening of the special circumstances provisions.
The Applicant, in evidence, explained his GAD (including his ALL and AN) operated in a way that he excessively worried about something, the issues would keep compounding, and it would more likely lead him to avoid the problem, rather than do something about it. GAD made him act irrationally. It was a repeating pattern throughout his degree. The Applicant said it was his GAD that made him unable to submit each of the applications for remission/re-credit of the Debt.
In evidence, he described GAD as giving rise to a mental or avoidance barrier, such that he could not make the application for remission/recredit of the Debt. His reasoning was irrational, and his medical condition was overwhelming.
He also stated that he did not take any action to make the applications for remission/re-credit of the Debt because he thought that, with the support indicated by Mr Wesley and the Dean of Education, there was no level of urgency to submit the applications, and therefore, he did not appreciate the level of importance and the legal implications of making such applications outside the specified period.
However, a lack of understanding or appreciation of the process is no explanation for the failure to comply with the legislative and Guideline framework. The fact he engaged others to assist him in the process and a belief that others supported him in his remission /recredit of Debt application is not sufficient to enliven the special circumstances criteria. The fact that he engaged the help of others does indicates he became aware, at some point in time, of the importance of making the application. However, the Applicant could not satisfactorily identify when that point in time arose.
The Tribunal found the Applicant to be an honest and genuine witness who attributed his inability to deal with his remission/recredit of the Debt as being due to the impact the GAD condition had upon him and his mental health. What became important in this matter was the evidence about the impact the diagnosis of GAD had on the Applicant from 2017 to 2020.
The Applicant’s submissions relating to the impacts of GAD were speculative and a self-serving opinion, albeit not a dishonest one, unsupported by independent evidence and in particular by a mental health practitioner such as a psychiatrist or psychologist. It was for that reason the Tribunal explained the concern about the state of the evidence and provided the Applicant an opportunity to provide medical evidence to support those claims.
In the absence of any independent evidence, the Tribunal is left with the opinion evidence of the Applicant which is incapable of satisfying the Tribunal that GAD impacted upon him, such that his was unable to submit an application for the remission/recredit of the Debt for any one of his units of study.
Further, there is no evidence to identify the point in time when the Applicant could be said to have first suffered from the condition, or at what point in time the condition made its full impact or so impacted upon him that he satisfied the special circumstance test insofar as he was unable to make the application, in relation to any one of the units of study.
The Applicant attributed his GAD as impacting upon him in 2017, albeit perhaps not to the same level as in subsequent years, thereby explaining his preparedness to make the concession that he may not have been rendered unable to make the remission/recredit application at that time; and that it was the compounding effect of the failed units of study and the need to prioritise his success by first enrolling and passing subsequent units of study before he was able to address the remission/recredit of Debt application that was the irrational and debilitating impact of GAD.
The Tribunal’s difficulty is that GAD was not diagnosed until at least post the Applicant’s suicide attempt. There is no evidence to identify whether it had any retrospective application and thereby had a compounding effect on the Applicant as described. In the report of Ms Num, dated 27 April 2021,[47] referred to above she reported:
“Precipitating factors to recent decline inc difficulties within academic studies and uncertainty about vocational future. Maintaining factors to distress inc ongoing academic requirements, lack of family/pier support and involvement (and difficulty navigating this social area due to MH issues), ongoing associated pain/fatigue + avoidant personality style, ambivalence about structured treatment modalities and lack of recognition of the severity of his recent mental health deterioration (risk of death via overdose)”.[48]
[47] Note: referred to in paragraph 94 above.
[48] Exhibit F, p 1.

The report refers to precipitating factors to recent decline, as opposed to medium or long-term factors to decline which impacted upon the Applicant. The report makes reference to academic requirements and mental health issues but does not provide evidence to enable the Tribunal to reach the required satisfaction about what those mental health factors were or their impact. It is also noteworthy the Applicant is reported to suffer from an avoidant personality style, and it is not clear whether this may also be an explanation for the Applicant’s failure to make the remission/re-credit application. This may also give explanation for the evidence that once he believed Mr Wesley and “Canteen” were dealing with his remission/re-credit application he did nothing further and relied upon them.
This latter fact that he relied on others and then concentrated on his ongoing study also suggests that the failure arose from his inaction, either directly or indirectly, and was something for which he was still responsible. That he did nothing, and relied on others, does not satisfy the criteria in the Guidelines in determining whether special circumstances existed.
CONCLUSION
Given the absence of such further evidence from a mental health practitioner, the Tribunal cannot be reasonably satisfied the Applicant was unable to make such application for remission/recredit of the Debt within the prescribed period. The Tribunal is not reasonably satisfied that the application periods should be waved on the basis it was not possible for the applications to be made within the application period.
Further, the Tribunal is reasonably satisfied that having enlisted the help of others the Applicant adopted an “out of sight out of mind” approached which is to be contrasted with a request for help to do something the Applicant was unable to do, as a consequence of his medical conditions, in particular GAD. The Tribunal is also reasonably satisfied that the applications for remission/re-credit of the Debt were not made within the relevant 12-month time period for each unit of study as a consequence of the Applicant’s inaction by failing to make enquiries and consult with Flinders and instead relied on others to complete these tasks for him. The Tribunal is not reasonably satisfied that the Applicant satisfied the special circumstances requirement as defined in either section of the Act under consideration.
The Tribunal accepts the Applicant has an avoidant personality style. That personality style may or may not give explanation for him avoiding issues in life generally and the remission/recredit applications in particular. The GAD condition may alone, or in combination with his avoidant personality style, give explanation for avoiding his obligations with regards his units of study. But absent of further evidence of the Applicant’s mental health condition, and its impact, including with his personality style, the Tribunal would be making its decision based on speculation rather than admissible evidence.
In the absence of independent evidence that can assist the Tribunal to understand the impact of GAD (and the related medical conditions) generally, and on the Applicant in particular, the Tribunal cannot be reasonably satisfied, when the Applicant was suffering from GAD relative to each unit of study or its impact on him, and whether the special circumstances consideration is enlivened and satisfied. The Tribunal is not reasonably satisfied that at any point in time the Applicant was unable to submit the applications for remission/re-credit of the Debt in respect of each unit of study within the prescribed 12-month application period, or at all.
The Applicant has endured significant hardship and it is a credit to him that he has nonetheless pursued and completed his Bachelor of Media Arts. The manner in which he presented his case before the Tribunal, as a self-represented litigant, is also a credit to him. The process can be daunting. The Tribunal’s decision is based upon the sufficiency of evidence presented at the hearing and is not an adverse finding in regards the credibility of the Applicant.
Wording of the decision
Having regards the issue with reviewable decision and legislative scheme under which the decision was made, and to which I have referred, it is appropriate that the Tribunal vary the reviewable decision to reflect the correct decision.
DECISION
The decision under review is varied, such that it reads:
(1)the Applicant does not meet the requirements in s 36–20 of the Higher Education Support Act 2003 (Cth) for remission of HECS-HELP Debt for those 14 units of study with a census date before 1 January 2020; and
(2)the Applicant does not meet the requirements in s 97-25 of the Higher Education Support Act 2003 (Cth) for re-credit of the Applicant’s HELP balance for the amount of HECS-HELP assistance received for the one unit of study with a census date after 1 January 2020.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.........................[Sgnd].......................................
Associate

Date of Decision: 19 September 2023

Date of Hearing: 4 April 2023

Applicant: Self-represented

Counsel for the Respondent:
Subasha Prasad (Minter Ellison)

[2023] AATA 2988

19 September 2023

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Natural Justice

Date of Decision:	19 September 2023
Date of Hearing:	4 April 2023
Applicant:	Self-represented
Counsel for the Respondent:	Subasha Prasad (Minter Ellison)