Binns and Secretary, Department of Education

This matter concerned an application by the Applicant for remission and re-credit of a HECS-HELP debt incurred with Flinders University. The Applicant's request was made more than 12 months after the end of the application period for all relevant units of study. To succeed, the Applicant was required to demonstrate that special circumstances existed at the time of undertaking each unit, that these circumstances were beyond his control, did not make their full impact until after the census date, and made it impracticable to complete the unit requirements. Furthermore, the Applicant had to show he was unable to make the application for remission or re-credit within the prescribed 12-month period. The Respondent submitted that the Applicant had failed to demonstrate either the existence of special circumstances or his inability to apply within the stipulated timeframe.

The legal issues before the Tribunal were whether the Applicant had established "special circumstances" as defined by the relevant legislation and guidelines, and whether he was unable to make his application for remission or re-credit within the 12-month period from the census date for each unit of study. The Tribunal was required to consider the specific provisions of the Higher Education Support Act 2003 (Cth) and the Higher Education Support (Administration) Guidelines 2022, which provided detailed criteria for assessing circumstances beyond a person's control, those that did not make their full impact until after the census date, and those that rendered completion of unit requirements impracticable. The Tribunal also had to determine if the Applicant's situation constituted a "very serious constraint" on his ability to act within the application period.

The Tribunal noted that the legislative framework had changed, with different sections of the Act applying depending on whether the census date for a unit of study was before or after 1 January 2020. Specifically, section 36-20 applied to the first 14 units, concerning remission of debt, while section 97-25 applied to the final unit, concerning re-credit of debt. Despite the original decision-maker and the reviewable decision-maker failing to distinguish between these provisions and referring only to a "remission application," the Tribunal was satisfied that all 15 units and the relevant factual circumstances had been considered. The Tribunal agreed with the Respondent's submission that the sole issue regarding the application period was whether it should be waived due to the Applicant's inability to make the application within that time. The Tribunal's role was to conduct a hearing de novo, considering all relevant facts to apply the correct legislative provisions.