CNPG and Secretary, Department of Education - [2022] AATA 4349

CNPG and Secretary, Department of Education [2022] AATA 4349 (15 December 2022)
Division:GENERAL DIVISION
File Number: 2022/3875
Re:CNPG
APPLICANT

AndSecretary, Department of Education
RESPONDENT

Decision
Tribunal:Senior Member D. J. Morris
Date:15 December 2022
Place:Melbourne

The reviewable decision, found to be dated 10 May 2022, is set aside and, in substitution therefore, the Tribunal decides under s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 as follows:
(a)The Applicant’s circumstances in relation to remission of the HECS-HELP debt for the four units she enrolled in at Federation University Australia in Semester 1, 2017 constituted special circumstances as defined by s 36.21 of the Higher Education Support Act 2003 (‘HES Act’).
(b)The Applicant’s circumstances in relation to remission of the HECS-HELP debt for the three units she enrolled in at Federation University Australia in Semester 2, 2017 did not constitute special circumstances as defined by s 36.21 of the HES Act.
(c)The result is that the Applicant’s Semester 1, 2017 debt of $4,041 is remitted, and her Semester 2, 2017 debt of $3,441 is confirmed.
(d)The matter is returned to the Respondent for recalculation of the debt to the Commonwealth in accordance with this decision.

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Senior Member D. J. Morris
Catchwords
HIGHER EDUCATION SUPPORT – HECS-HELP – remission of debts – two different study periods – applicant claims severe flare up in mental health affected her ability to withdraw before census date – applicant sought internal review of decision by higher education provider – higher education provider provided oral advice that decision was confirmed – review by Tribunal – consideration of legislative provisions and Guidelines then in place – whether special circumstances applicable to applicant were beyond her control – whether special circumstances had an abnormal or unusual overlay – decision under review set aside and new decision substituted remitting one debt and confirming the other debt
PRACTICE AND PROCEDURE – where enactment provides for review by Tribunal – where decision-maker gave affected party oral advice of decision – where affected party, acting on that advice, applied to Tribunal for review – where reviewable decision subsequently advised but not in form required by enactment – Brian Lawlor principle – purported or defective decision in this case is a decision in fact – Tribunal satisfied decision in fact made under relevant Act which permits review by Tribunal – Tribunal therefore satisfied decision amenable to review
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 25, 27, 33A, 35, 37, 43
Customs Act 1901 (Cth), s 78
Higher Education Support Act 2003 (Cth), ss 36.20, 36.21, 87.1, 137.5, 206.1, 209.5, 209.10, 212.1, 238.10
Higher Education Support Act Administrative Guidelines 2012, 3.1, 3.5, 3.5.1, 3.10, 3.10.1, 3.15, 3.15.1
Cases
Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales; Re: [1978] AATA 49
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 ALR 338
Montenegro v Secretary, Department of Education [2020] FCA 325
Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education; Re: [2012] AATA 824
PJPF and Secretary, Department of Education and Training; Re: [2016] AATA 833
Tralongo and Secretary, Department of Education; Re: [2016] AATA 393
Williams and Secretary, Department of Education and Training; Re: [2016] AATA 377
Secondary Materials
The Concise Oxford Dictionary; H. W. & F. G. Fowler; (Fourth Ed.); Clarendon Press; 1951
REASONS FOR DECISION
Senior Member D. J. Morris
15 December 2022

The Tribunal, of its own motion, issued an order under s 35 of the Administrative AppealsTribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the name of the Applicant in these proceedings. She will instead be known as ‘CNPG’ and where her name is referred to in exhibits, the anonym will be substituted. The reason for the order was because of personal privacy, as it will be necessary in these reasons to refer to certain personal medical information relating to the Applicant. Neither party objected to the order.
BACKGROUND
CNPG is a former member of the Australian Defence Force who, at the time of the matters relating to this review, was living in a provincial city in Victoria and studying towards a Bachelor of Commerce (Accounting) degree, enrolled at Federation University Australia (‘FUA’). For many years, since at least 2014, CNPG has suffered from mental health issues.
In December 2021, CNPG applied to FUA for the remission of her HECS-HELP debt, pursuant to s 36.20(1)(e)(ii) of the Higher Education Support Act 2003 (‘the HES Act’) in relation to certain units of study in which she was enrolled. The relevant units were four she was enrolled in for Semester 1 of 2017, where the census date was 31 March 2017 (‘the Semester 1 units’), and the three she was enrolled in for Semester 2 of 2017, where the census date was 31 August 2017 (‘the Semester 2 units’).
On 6 January 2022, FUA refused CNPG’s remission request. In March 2022, CNPG requested an internal review of the refusal decision. On 10 May 2022, an officer of FUA told the Applicant that the internal review had confirmed the decision to refuse the remission request, and the following day, FUA wrote to CNPG confirming the oral advice (‘the rejection decision’).
CNPG lodged an application for review of the rejection decision with the Tribunal on 10 May 2022. As will be seen later, this is apparently the day before the Applicant received the rejection decision.
Threshold question – is the decision amenable to review?
The Tribunal does not have an inherent power to review decisions made under Commonwealth statutes (enactments). An enactment must explicitly give the Tribunal that power. Sometimes, the first thing the Tribunal must do is decide whether there has been a decision that is reviewable. That was necessary in this case.
Section 25 of the AAT Act provides:
Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1)         An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in exercise of powers conferred by that enactment; or
(b)for review of decisions made in the exercise of powers conferred, or that may be conferred by another enactment having effect under that enactment.
…
(3)         Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a)shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)       may specify conditions subject to which applications may be made.
Section 27 of the AAT Act goes on to say:
(1)Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.
In this case, the enactment is the HES Act, which provides, at s 212.1, that an application may be made to the Administrative Appeals Tribunal for review of a reviewable decision that has been confirmed, varied, or set aside under ss 209.5 or 209.10 of the HES Act. A reviewable decision includes, relevantly to CNPG, a decision that s 36.20 (i.e., to repay a debt) does not apply to a person. Put more simply, the debt can be remitted under s 36.20 under special circumstances, if either the application is made before the end of the Application Period or 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 (see s 36.20(1)(f)).
Given that CNPG had lodged her application to the Tribunal on 10 May 2022, the day before she received written advice of the rejection decision, the Respondent raised a question as to whether the matter was amenable to review.
A decision in fact – purported exercise of power – Brian Lawlor principle
In 1978, the first President of this Tribunal, Sir Gerard Brennan, considered a matter brought by an applicant (Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales [1978] AATA 49). The facts in that case were that the Commonwealth Collector of Customs in NSW (‘the Collector’) had written to a company, Brian Lawlor Automotive Pty Ltd (‘Brian Lawlor’), which operated a Sydney warehouse that had been licensed under s 78 of the Customs Act 1901. The Collector advised Brian Lawlor that the warehouse licence was revoked. Brian Lawlor brought the matter to the Tribunal on the basis that there was no power in the Customs Act to revoke such a licence, and consequently that there was no valid decision by the Collector.
Before the Tribunal considered whether the licence was revocable, it first had to deal with the basis of Brian Lawlor’s case that it was asking for a review of a ‘non-decision’, i.e., one purported to have been done, but which the relevant statute did not permit to be done.
Brennan J said:
A right to seek a review by this Tribunal of a decision made in the intended exercise of a power specified in the Schedule or in an enactment to which s 25(1) refers is not defeated if that decision is made beyond power. Where this Tribunal reviews a decision and for that purpose draws upon those powers (which s 43 confers on it) corresponding with the powers of the original decision-maker, it is this Tribunal’s decision which is the operative decision.
Section 43 of the AAT Act then, as now, provides that the Tribunal can affirm a reviewable decision; set a reviewable decision aside and substitute a decision in its place; vary a reviewable decision, or remit a decision with directions to the decision-maker.
The Collector sought judicial review of the Tribunal’s decision. In Collector of Customs(NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 ALR 338, Bowen CJ (Smithers J separately agreeing, Deane J in dissent) held that the appeal should be dismissed because the phrase “made in the exercise of powers conferred by that enactment” in s 25(1)(a) of the AAT Act, properly construed, means in purported exercise of powers conferred by the enactment.
Bowen CJ said, at [23]:
As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in the exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.
(Emphasis added)
On 14 July 2022, the Tribunal held an interlocutory hearing to hear submissions from CNPG and the Respondent about whether the decision was reviewable. CNPG explained that in January 2022 she had lodged a request to FUA for an internal review of the decision not to remit her HECS-HELP debt. She had not heard anything from the university, so she telephoned the relevant office at FUA on 10 May 2022 to inquire as to progress with the internal review.
Oral advice of decision followed by email
At the interlocutory hearing, CNPG stated that the FUA officer told her during the telephone conversation that her ‘request had been rejected but then told me in writing on 11 May 2022’. CNPG confirmed she had not received any other formal advice of the decision other than an email on 11 May 2022. That email, to the Applicant from the Manager of Registrar Services, was in evidence. It relevantly said:
Dear CNPG
Thank you for our conversation yesterday. Again I apologise for the delay in getting back to you in regard for [sic] the review of your remission of debt outcome. As discussed the review concluded that there was no change to the outcome of your remission of debt application.
The review identified that you applied for remission of debt outside the 12 month timeframe and had not provided sufficient evidence that the circumstances of your existing issues made their full impact after census date.
I understand you are taking the next steps to have this reviewed outside the University process. For your information please see our Student complaints and concerns – Federation Australia website. This website has information on the external complaints processes, including for the Victorian Ombudsman.
(Emphasis added.)
The legal representative of the Secretary submitted at the directions hearing that the Respondent conceded that the email reads that it is an affirmation of the rejection decision and said that it was the Secretary’s view that this enlivens the jurisdiction of the Tribunal under the HES Act.
I said that I was satisfied that this was formal advice from FUA to CNPG confirming the rejection decision, but that there must be another document, presumably the decision record, that the Manager of Registry Services was referring to when she spoke to CNPG on 10 May 2022 and then followed up with the email confirmation on 11 May 2022.
The Respondent said that the Department would make inquiries of FUA as to when the decision was made. The Tribunal requested provision of the decision record, in whatever form it existed, of the internal decision.
Decision did not comply with Act – finding on jurisdiction
After the interlocutory hearing, the Tribunal issued an order on 14 July 2022 finding that the decision advised to the Applicant by email on 11 May 2022 is amenable to the jurisdiction of the Tribunal as a decision under s 209.5 of the HES Act (see ss 206.1 and 212.1).
This matter is different from the facts in Brian Lawlor because, in that case, it was found that there was no power for the Collector of Customs (NSW) to revoke the warehouse licence he purported to revoke. In CNPG’s case, there is no doubt that the HES Act gives FUA the power to internally review a request for HECS debt remission and confirm, vary, or set aside and substitute such a decision (see s 209.5(3)). The problem lies in the fact that there was apparently a rejection decision that was not advised to the Applicant, until she inquired; and that she lodged an application with the Tribunal before receiving that rejection decision in writing. However, I am satisfied that there was a decision in fact, and that, despite infelicities, the decision-maker purported to exercise the relevant power under the HES Act.
There is an oddity in this case, insofar as CNPG lodged her application for review the day before she was advised of the decision in writing, but on the day that she was advised of the decision. I also note the Respondent conceded at the interlocutory hearing that this was sufficient to fulfil the requirements of the HES Act.
The internal decision may have been defective because there was no evidence that a statement of reasons was ever provided to CNPG, as is required under s 209.5(6) of the HES Act. In addition, a note at the end of s 209.5 of the HES Act states: “Section 27A of the AAT Act requires the person to be notified of the person’s review rights”.
The email dated 11 May 2022 from FUA refers to advice on complaints processes and provides a link to FUA’s complaints website. Under s 33 of the AAT Act, the Tribunal has examined that link and, at the time of writing these reasons, notes that it provides links to the website of the Victorian Ombudsman for students who are resident in Victoria, to the Victorian Equal Opportunity and Human Rights Commission and to the Australian Human Rights Commission. The complaints website is inapposite to advising CNPG of her rights of further review set out in the HES Act, which is to this Tribunal.
However, CNPG ascertained that herself, and submitted an electronic application for review, received by the Tribunal on 10 May 2022. Section 2A of the AAT Act sets out the objective of the Tribunal. Among others, the objective is to be accessible, fair, informal, and quick. As the Federal Court has remarked, the Tribunal is a pragmatic jurisdiction; and where both parties accept that a decision had been taken which had been communicated, if poorly, to the person affected who has a statutory right to seek review of that decision by the Tribunal, it is my view that it would be inconsistent with the Tribunal’s objective in s 2A of the AAT Act to deny jurisdiction because of a tree across the road. The HES Act makes clear that internal decisions such as the one that affected CNPG are reviewable by the Tribunal, so this tree can be gone around.
It is however worth recording a reminder, that higher education institutions responsible for making and reviewing decisions under the HES Act have an obligation to adhere to the requirements in the Act about properly notifying students of decisions, including furnishing them with a decision record setting out the reasons for the decision and explaining review rights as stipulated in the relevant enactment.
In this case, there were several areas in which FUA did not comply with the HES Act. In spite of it being requested at the interlocutory hearing, I observe that no decision record from FUA has ever been produced by the Department. It was not included in the documents the Respondent is required to lodge under ss 37 or 38AA of the AAT Act. No explanation was provided for this omission. I have reached the inevitable conclusion that FUA has not produced a decision record to the Respondent. Not only is this slapdash, but it does not comply with s 209.5 of the HES Act. Higher education providers make decisions about HECS-HELP debts and conduct internal reviews, in effect as agents of the Department which administers the assistance scheme. In doing so, it is important they act with procedural fairness to students applying for debt remissions. I am not satisfied that FUA did so in this case.
Notwithstanding, the Tribunal does have some sympathy with FUA officers dealing with the Applicant. On several occasions, CNPG has responded rudely in emails and message portals and sometimes used obscenities and intemperate language. I have concluded that this approach was, to a large part, driven by frustration with her mental health challenges. She presented at the hearing of this matter as an intelligent person who was able to marshal her thoughts, although one with a short fuse. Rudeness and insults from CNPG would not be conducive to a serene relationship with the higher education provider.
I concluded that the advice conveyed to CNPG on 10 May 2022, and confirmed by email on 11 May 2022, constituted a decision on review, which confirmed the decision (see s 209.5(4)).
I also made routine orders for the Respondent to lodge documents relating to the decision under s 37 of the AAT Act and a Statement of Facts, Issues and Contentions, and for CNPG to lodge submissions; and that a date would then be scheduled for the hearing.
Date of reviewable decision?
At TD, p 125 was an exchange between CNPG and an FUA officer after the Applicant inquired by a message portal about progress with her review request. In what appears to be an internal note, an officer wrote on 2 May 2022:
CNPG rang today to follow up. I have explained to her that her application is currently with the registrar, and she will be notified in due course as to the outcome.
Therefore, the best that can be said is that the rejection decision had not been made on 2 May 2022 but was made sometime in the period from 2 to 10 May 2022, when the Manager of Registry Services referred to it during her telephone discussion with CNPG.

In the absence of evidence of when the decision was made (s 209.5(4)) and any decision record (ss 209.5(5) and (6)), I have to determine a notional date of the rejection decision. I find that date is 10 May 2022 (the day an officer of FUA confirmed the decision had been made).
HEARING
The hearing took place by video link under s 33A of the AAT Act on 18 November 2022. CNPG represented herself, and Ms Josie Walker of Maddocks Lawyers represented the Respondent. Both the Applicant and the Respondent made submissions, and CNPG gave oral evidence.
The Tribunal admitted the following documents into evidence:
(a)Volume of ‘TD’ documents lodged under s 37 of the AAT Act – Exhibit R1;
(b)Respondent’s chronology, lodged on 17 November 2022 – Exhibit R2;
(c)Applicant’s appeal summary, lodged on 14 July 2022 – Exhibit A1;
(d)Applicant’s email to Tribunal dated 16 May 2022 – Exhibit A2;
(e)Applicant’s hospital admissions lodged on 1 September 2022 – Exhibit A3;
(f)Applicant’s hospital dates lodged on 1 September 2022 – Exhibit A4;
(g)Applicant’s further submissions lodged on 15 November 2022 – Exhibit A5;
(h)Letter from FUA dated 16 March 2016 – Exhibit A6;
(i)Emails between FUA and the Applicant lodged on 14 October 2022 – Exhibit A7;
(j)Email from the Applicant dated 9 September 2022 – Exhibit A8;
(k)Letter from Dr David Sacks dated 28 September (no year) – Exhibit A9;
(l)Letter from Dr David Sacks dated 17 November 2022 – Exhibit A10;
(m)Support letter from Mr Dion Szer dated 22 August 2022 – Exhibit A11; and
(n)Article ‘Suicide within two weeks of discharge from psychiatric in-patient care: a case control study’ by Bickley et al, dated 1 July 2013 - Exhibit A12.
The Respondent submitted several iterations of a Statement of Facts, Issues and Contentions (‘RSFIC’), the last lodged on 4 November 2022.
OPENING SUBMISSIONS
The Respondent
Ms Walker noted that the courses relevant to CNPG’s application were four units in which she enrolled in Semester 1 of 2017 and 3 units in Semester 2 of 2017. She noted that CNPG did not complete the courses; she did some early coursework but did not withdraw from the courses at the end of the application period.
Ms Walker acknowledged that CNPG had serious mental health issues at the relevant time but submitted to the Tribunal that, as CNPG did not lodge her application for remission before the end of the application period, the Applicant needs to demonstrate and the Tribunal needs to be satisfied that it ‘would not be, or was not, possible’ for the application to be made before the end of the period.
Ms Walker noted that CNPG has taken some three and a half years to lodge an application and said that this was a relevant factor for the Tribunal to take into account. However, she agreed in response to a direct query from the Tribunal that there is no time limit for the lodgement of such applications.
The Applicant
CNPG said that she enrolled in the Semester 1 units and started submitting assignments. She said that she then experienced a “massive flare up with my mental illness”. CNPG said this affected her in many ways, including almost having a major collision when driving. She said at this time, her treating general practitioner urged her to agree to be admitted to hospital, but she refused. CNPG said she did enter hospital early in 2017. She enrolled for the Semester 2 units and was discharged from hospital.
The Tribunal noted that Dr Sacks wrote, in his letter of 17 November 2022:
[CNPG] refused to be admitted to the Psychiatric hospital due to events that occurred in January [i.e., 2017], I was unable to have her held under the Mental Health Act, explaining why she was not admitted to [name of clinic redacted] until late June.
CNPG said that she did not meet the criteria at the time for involuntary admission, which is why Dr Sacks could not admit her until June 2017.
CNPG told the Tribunal: “My mental health is always terrible. At that time, it flared up. I was not functioning and drinking heavily. I moved into supported accommodation after living with my parents. I enjoyed using ‘benzos’ and admit that I was doctor shopping.”
CNPG told the Tribunal that she had previously had a HECS debt matter involving the Department in 2016, which had settled. She told the Tribunal that she had previously served in the Australian Army before her mental health declined.
ORAL EVIDENCE
CNPG agreed that she had a previous debt remission in 2016, which was on the grounds of her mental health issues. Ms Walker said that it would appear that the issues were the same as applied in early 2017. CNPG disagreed. She said that in 2016 she was depressed, but not actively ideating suicide.
CNPG agreed that the hospital admission records show that she was in hospital at the end of 2016 and early 2017. She said she entered hospital in 2017 for four weeks’ therapy but discharged herself against medical advice.
Ms Walker asked CNPG whether she was aware of the timeframe for lodging an application for remission in 2017. The Applicant responded, “That was the last thing on my mind.”
Ms Walker asked CNPG whether she was less sick in 2018 and 2019 than she was in 2017. She responded: “The progress I have made is amazing. The illness I had [in 2017] was much more distressing than normal.”
Ms Walker queried why it has taken some time for CNPG to lodge a request for remission. She responded: “My lawyer told me I could wipe the debt to the Department of Finance. They said I had to exhaust all other avenues before they would approve”. The Tribunal asked the Applicant if she was referring to an act of grace payment process with the Department of Finance. CNPG responded: “Yes, I am still in discussion with the Department of Finance. That’s why I wanted this hearing.”
CNPG agreed that she started seeing Mr Dion Szer, a clinical psychologist, in February 2017. She said that Mr Szer works at the clinic she attended. She said she sees Mr Szer every week, with the costs of her sessions being defrayed by the Department of Veterans’ Affairs owing to her previous Army service.
CNPG said she sees Dr Sacks, her general practitioner, “every couple of months”. She said she began seeing Dr Cronin, consultant psychiatrist, in 2014 and last saw him about a month before the hearing, i.e., in October 2022. She said she sees Dr Cronin monthly.
In response to a question from the Tribunal, Ms Walker advised that the amounts of the debt in question are $4,041 for the Semester 1 units and $3,441 for the Semester 2 units, a total debt of $7,482.
CLOSING SUBMISSIONS
The Applicant
CNPG said she was excited to start university in Semester 1 of 2017. She had engaged with a new mental health team and moved to a new city and signed up for local disability services. She said that, after the census date, she had “a severe flare up. I had never had one before.”
In response to queries from the Respondent about whether she was able to engage with FUA through her computer in the hospital, she agreed that she was allowed to use a laptop computer when in hospital, but said she had to negotiate with hospital reception if she wanted to print anything out. She said her mental health state at the time was such that she was not able to answer calls from her own lawyer.
The Respondent
Ms Walker said that CNPG needs to show that special circumstances apply to her under s 36.21 of the HES Act, which were beyond her control and did not make their full impact on the person until after the ‘census date’ for the unit of study. Added to this, the Respondent submitted, are the Higher Education Support Act 2003 – Administration Guidelines 2012 (which were the relevant guidelines in place at the time) (‘the Guidelines’).
The Guidelines must be taken into account by a decision-maker when making a decision under s 36.20 of the HES Act. Relevantly, Chapter 3 of the Guidelines specifies the circumstances in which a higher education provider will be satisfied that special circumstances apply to a person:
3.1 Purpose
(a)  are beyond the person’s control (paragraph 36-21(1)(a) of the Act);
(b)  do not make their full impact on the person until on or after the census date for the
unit of study in question (paragraph 36-21(1)(b) of the Act); and
(c)  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 (paragraph 36-21(1)(c) of the Act).
The Respondent submitted that, if it is determined that the student meets the requirement of ‘special circumstances’ under ss 36.20 and 36.21 of the HES Act, the student’s HELP balance is remitted accordingly, and their HECS-HELP debt is taken to be remitted under s 137.5(4) of the HES Act.
The Respondent drew my attention to other decisions of the Tribunal dealing with this part of the HES Act, and said that the Tribunal must consider whether the circumstances facing CNPG were ‘unusual or abnormal for her’ at the time.
Ms Walker said that this was not CNPG’s first application for remission, so she was familiar with the process, and her evidence was that she had not found it difficult in 2016. The Respondent accepted that it ‘might have been more difficult’ in 2017 but that there were periods when the Applicant was not in hospital. Ms Walker said that it was accepted that this was probably not a high priority for CNPG at the time, with the other matters she was dealing with about her health.
Closing submission in reply – the Applicant
CNPG said that her treating doctor, Dr Sacks, pointed out that she had a severe flare up in Semester 1 of 2017. She said that having heard the Respondent’s submissions, she now understands that there is no basis for her to seek remission of the debt for the Semester 2 units. The Tribunal clarified with CNPG whether that means she was no longer pressing her contention that the reviewable decision in relation to the 2017 Semester 2 units was wrong. CNPG said that was the case.
CONSIDERATION
The legislative scheme
Section 87.1 of the HES Act provides the basis for HECS-HELP assistance. A student has a liability to repay a HECS-HELP debt for units of study if the student is enrolled as at the census date for those units. As mentioned above, the census date for four units of study in CNPG’s case in Semester 1 of 2017 was 31 March 2017. The census date for three units of study in Semester 2 of 2017 was 31 August 2017. A student can make an application under s 30.20 of the HES Act to a higher education provider (FUA in this case), for the remission of the person’s debt for a unit of study. Section 36.21 of the HES Act provides that FUA must determine that s 36.20 is applicable to the student where the higher education provider is satisfied that special circumstances apply to the person.
What constitutes special circumstances is in s 36.21 of the HES Act:
Special circumstances
(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.
The Minister has the power to make guidelines under s 238.10 of the HES Act. At the time of the rejection decision, the Higher Education Support Act 2003 –Administration Guidelines (‘Guidelines’), which commenced on 6 August 2013, were in force. I note that these Guidelines were repealed in 2022 and replaced with new Guidelines, but the Respondent advised that the new guidelines are not materially different in relation to this part.
Chapter 3 of the Guidelines specifies the circumstances in which a higher education provider will be satisfied that special circumstances apply to a person:
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 a person is not responsible.
3.5.5 The situation referred to in 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 date; or
(b)Before the census date, but the full effect or magnitude does not become apparent until on or after that date; 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…
The Guidelines are a legislative instrument, as was confirmed by Ms Walker at the hearing. The Tribunal notes that Flick J, in Montenegro v Secretary, Department of Education [2020] FCA 325, said, at [85] that:
the decision-maker must, in effect, act or carry out his or her task consistently with those guidelines.
The Respondent made submissions that, in the case of CNPG, ‘special circumstances’ mean circumstances that were ‘unusual, uncommon or abnormal’ for her, taking into account that she had a long history of challenging mental illness; which the Respondent accepted on the medical evidence had fluctuated over time.
The Respondent submitted that CNPG was aware that her medical condition could have an impact on her ability to complete units because she had received treatment over a long period of time, including intensive treatment in the preceding six months, before commencing the semester 1 units. The Secretary submitted that CNPG was aware that the units involved some requirements, including submission of work for assessment by relevant due dates.
The Respondent said that CNPG knew she required support by a clinical psychologist (Mr Szer) from at least February 2017, when she became his patient. Mr Szer relevantly wrote on 22 August 2022 (Exhibit A11):
My name is Mr. Dion Szer, and I am a clinical psychologist. I have been the treating psychologist for CNPG since February 2017. I am writing this report in support for CNPG’s appeal related to her HECS debt lodged with the Administrative Appeals Tribunal. The following report has been mostly based on case notes relating to sessions I had with CNPG during the relevant periods of time.
CNPG’s main presenting issues are anxiety, depression and borderline personality disorder. These symptoms have been prevalent since before we started our treatment in February 2017. From the beginning of our therapy, her symptom presentation was at a heightened level. She had severe exacerbation of anxiety, depressive symptoms and suicidality. At this time, she has [sic] relatively low insight into these symptoms, as well as poor management strategies and abilities. As such, these symptoms often presented in heightened and dysregulated ways.
My understanding of the current circumstances is that CNPG applied for a remission of debt from a course in which she was enrolled in 2017, however this application was rejected because she did not make this application within a 12 month time period. Based on my case notes, the exacerbated nature of her mental state and poor symptom management in 2017 and 2018 would have made it unrealistic for her to have the emotional stability or cognitive abilities to be able to engage effectively in her course, or have the presence of mind for application time periods.
According to my notes, CNPG reported some motivation and positive engagement towards her degree in the initial stages (March 2017). However, after this point she regularly reported significant struggles with her course, as well as her overall mental state…
Mr Szer goes on to report that CNPG had frequent admissions to psychiatric hospitals from late June 2017 over several months.
The Respondent also refers to the following letter from Dr David Sacks, the Applicant’s treating general practitioner (Exhibit A10). Dr Sacks relevantly wrote:
This is to confirm that CNPG has been receiving treatment from me since May 18, 2014. She has received extensive treatment with multiple hospitalisations, medications, psychotherapy and TMS. At the time of the first census date, 31^st March 2017 CNPG had been diagnosed with Major Depressive Disorder and General Anxiety Disorder. It was not until June 2018 that CNPG was diagnosed with Borderline Personality Disorder.
CNPG presented on April 18, 2017 having experienced a severe flare up of her Mental Health, this was completely out of her control, we cannot predict when a flare up will take place. This particular instance was uncommon for CPNG. CNPG was abusing her medication, in a constant feeling of being overwhelmed, she was struggling to focus on simple tasks, abusing alcohol and expressing suicidal ideation.
…CNPG struggled with suicidal ideation consistently during the required 12 month time frame to apply for remission of debt, during 2017 and 2018. Due to the severity of the flare up it was impossible for CNPG to complete the requirements of the study during the study period. CNPG refused to be admitted to the Psychiatric hospital due to events that occurred in January, I was unable to have her held under the Mental Health Act, explaining why she was not admitted to [redacted] until late June.
The Respondent submitted that Dr Sacks does not explain how the ‘flare up’ was unusual and that the Applicant has not explained how that particular flare up was unusual or different from previous flare ups. The Respondent also submitted that ‘arguably’, CNPG knew she would not be able to satisfy the demands of the course, notwithstanding that a learning assistance programme was in place (to provide additional help). Further, that CNPG knew prior to the Semester 2 units census date that she would not be able to comply with the demands of the courses she had enrolled in in Semester 2, in view of her inability to complete the Semester 1 units and further hospital treatments.
Finally, the Respondent submitted that while the Secretary was sympathetic to CNPG’s situation and the hardships she has faced, withdrawing from the units prior to the census dates was within her control.
The Respondent drew the Tribunal’s attention to two previous decisions, Re: Tralongo andSecretary, Department of Education [2016] AATA 393 (‘Tralongo’) and Re: PJPF and Secretary,Department of Education and Training [2016] AATA 833 (‘PJPF’) in support of her contentions.
In Tralongo, the Applicant suffered from a debilitating illness, Churg-Strauss Syndrome, which is a severe autoimmune disease. Ms Tralongo was diagnosed with the disease in 2008 and re-enrolled in a university course in 2012. On several occasions, in successive preceding years, she had applied for the remission of HECS debts on the basis of exacerbation of her disease, which was supported by medical evidence. On five occasions the remission applications had been approved or declined and subsequently approved on internal review. On one occasion, it was declined at first instance and on review. SM Britten-Jones (as the learned Deputy President then was) said, at [24]:
I consider that Ms Tralongo has not satisfied the requirements of special circumstances in section 36-20(1)(d) of the Act. In this regard, as to whether the circumstances were beyond Ms Tralongo’s control, I say that the failure to withdraw by the census date was not beyond her control and that her situation was not unusual or uncommon in the circumstances of the disease having first been diagnosed in March 2008. Any flare up or exacerbation was not unusual or uncommon for Ms Tralongo who had similar flare ups whilst studying in previous semesters. Therefore, Ms Tralongo does not satisfy subsection 36-21(1)(a) with respect to special circumstances.

SM Britten-Jones went on to say that it cannot be said that the circumstances of Ms Tralongo’s illness did not make their full impact until after the census date and, at [25]:
Indeed the circumstances of a flare up or exacerbation were regular in previous semesters, such that their impact occurred well before the census date of 15 August 2014.
PJPF was a decision of Member Bygrave. In that case, the Applicant had been diagnosed with anxiety and depression and suffered panic attacks in crowded situations. PJPF had enrolled in units to study a Bachelor of Laws degree in December 2014, two days after a consultant psychiatrist, Dr Anthony Dineen, wrote a report saying:
Memory and concentration were very poor at interview. He told me he can’t study. If he reads something he has to read it again. He is distracted.
(Emphasis added.)
The Respondent noted that the learned Member found that PJPF’s situation was not beyond his control because he was responsible for deciding to enrol after a psychiatrist had reported he was unable to study. I might also add that it was clear, in that case, that PJPF had told Dr Dineen himself that he could not study.
At the hearing, I made the (somewhat trite) remark that there is no stare decisis doctrine in the Tribunal; each matter turns on its own facts. However, it is sometimes valuable to know of other decisions where the same legislation and subordinate legislation have been considered and applied.
The Tribunal considers that neither Tralongo nor PJPF are apposite to CNPG’s circumstances. In Tralongo, there had been a long history of attempts to study and debt remissions. CNPG has some history of that, but nothing comparable. In addition, the main effect of Churg-Strauss syndrome on Ms Tralongo gave her profound fatigue. Of itself, that medical condition did not affect her cognitive abilities or thought planning, regarding decisions on enrolment or withdrawing from courses by census dates.
In the case of PJPF, the applicant had told his treating psychiatrist that he could not study, and then went on to enrol in a course two days later. There is no evidence before me that CNPG thought she could not study, nor that her treating medical professionals have ever told her that she should not study.
Both parties also submitted that the Tribunal should note the decision of SM Cremean in Re:Williams and Secretary, Department of Education and Training [2016] AATA 377 (‘Williams’). In that case, Mr Williams suffered from a mental health condition. He contended to the Tribunal that it was not possible for him to apply (for the remission of debt on the ground of special circumstances) during the application period because of his mental health condition and therefore that the period should be waived. In Mr Williams’ case, one of the symptoms of his health condition was the inability to complete detailed forms.
In Williams, the Respondent argued (as they do here) that the fact that Mr Williams was engaging with the university during the application period meant that it could not be the case that it was ‘not possible’ for him to apply within the application period. SM Cremean referred to an earlier decision of SM Friedman (Re: Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 824) that the “plain and ordinary meaning of the word ‘possible’ is whether something is capable of being done”. In that case, the learned Senior Member accepted that the applicant faced ‘very severe’ personal circumstances with ongoing trauma and anxiety but decided she could attend to day-to-day activities, so she did not satisfy the notion of it not being ‘possible’ under the statute. However, SM Friedman qualified this by going on to say, at [25] that:
Whether something is possible also depends on the circumstances of each particular case, and the individual concerned….No firm rules can be laid down in advance on these various matters. It should not be assumed that it is possible for someone to do something simply because there is nothing physically preventing them from doing it or because it is possible for others to do it.
The Respondent submitted that the word ‘possible’ should require a ‘very serious constraint’ for something not to be ‘possible’. I reject the suggestion that Parliament intended to set such an alpine bar in interpreting that word in s 36.20(1)(f)(ii) of the HES Act. The Tribunal’s view is that ‘possible’ in this context should be interpreted to mean ‘reasonably possible in all the circumstances.’ The Semester 1 units had an estimated end date of 24 November 2017, so the application period is 12 months from this end date, i.e., to 24 November 2018 (RSFIC, paragraph 10). CNPG submitted her remission request on 6 December 2021, which is clearly outside the application period, so the requirement in s 36.20(1)(f)(i) was not met.
So, was it reasonably possible in all the circumstances for CNPG to submit her remission request in the application period? CNPG’s hospital admissions records showed she was admitted to a psychiatric hospital from late November to early December 2016. She was again in hospital for two days in January 2017. On 27 February 2017, semester 1 units lectures commenced. She managed to submit some work for assessment between 22 March and 5 April. From 20 June 2017, she was in hospital for a month. She was discharged for four days and then re-admitted from 24 July to 17 August 2017.
Dr Cronin wrote in February 2022 that he had been treating CNPG for anxiety disorder, major depressive disorder, borderline personality disorder and alcohol use disorder since 2014. This letter was in relation to an application for disability support pension, but, given Dr Cronin has been treating CNPG regularly for some eight years, the following professional opinions he expresses are relevant to the Tribunal’s task. He wrote (TD, p 61):
Concentration and task completion. She has difficulty concentrating on complex tasks for more than an hour. She has major difficulty in completing education and training…
Behaviour planning and decision-making. She has difficulty coping with situations involving stress, pressure or performance demands.
Mr Szer also wrote in support of the DSP application in March 2022. He relevantly said (TD, p 60):
Behaviour, planning and decision making
In times of heightened distress or emotional challenge, CPNG shows deficits in her executive functioning and impulse control. This often has an adverse effect on her behavioural reactions, ability to make effective plans, and reduces the appropriateness of her decision-making.
The contemporaneous medical notes of both her GP and clinical psychologist paint the picture that her mental health state was ‘flaring’ in 2017, in an uncommon way. On her own account, she was self-medicating not only with drugs but with contraband vodka in hospital. Pivotally, it was Dr Sacks’ and, particularly, Mr Szer’s broad assessment that CNPG was lacking insight into the severity of the symptoms she was facing. That is reflected in Dr Sacks’ wanting to admit her ‘involuntarily’ to hospital at the beginning of 2017, and CNPG refusing; and in Mr Szer’s references to what he recorded in his contemporaneous clinical notes.
The Tribunal accepts that the phrase ‘special circumstances’ in the case of CNPG must be viewed through the lens of whether the circumstances are ‘special’ unto her. In other words, through the lens of someone with an acknowledged history of fluctuating and serious mental health conditions since 2014. However, the medical evidence before the Tribunal all supports a conclusion that the situation facing CNPG at and after the census date in Semester 1 of 2017 was unusual, uncommon, and abnormal (to borrow the wording in the Guidelines).
Mr Szer said CNPG’s symptoms were ‘heightened’ in February 2017. He then goes on to say around that time, she had a ‘severe exacerbation’ and ‘lacked insight’. The Concise Oxford Dictionary definition of ‘heightened’ is that something is intensified or inflated. The same dictionary defines ‘exacerbated’ as being something that is aggravated, in terms of pain or disease.
Dr Sacks said that CNPG had experienced a ‘severe flare up’ which was ‘totally beyond her control’, and which he regarded as ‘uncommon’, when she presented to him with that symptomology it was on 18 April 2017.
I agree with SM Cremean’s conclusion in Williams (at [64]), that sometimes it may be ‘not possible’ for someone to do something, even when he or she is not physically prevented from doing the thing.
94. I am satisfied on the weight of the medical evidence that the situation facing CPNG in 2017 in relation to the semester 1 units was unusual, uncommon, or abnormal in the context of her well-established mental health conditions. My satisfaction is reinforced by the knowledge that Mr Szer and Dr Sacks have access to their contemporaneous medical notes of that time and have referred to them in writing their recent reports. CNPG’s oral evidence was more circumstantial, in the sense of saying it was difficult for her, when admitted, to use a computer and to print documents; and that she ignored other emails and contacts from her lawyers (on unrelated matters) at the time, because of a combination of her mental health challenges and, on her admission, self-medicating with alcohol she had secretly brought onto the ward.
Important in my conclusion, is Mr Szer’s reference to CNPG having low insight and poor management strategies at the relevant time. These features would contribute to an inability to properly engage with FUA about her courses. I find that the ‘flare up’ was abnormal and uncommon, in an accepted and established milieu of CNPG’s general medical conditions.
For this Applicant, this was not a physical injury or disease which might be disabling but might not affect logical thought-processes and insight. It was also not a condition where CNPG should reasonably have expected ‘flare-ups’ (cf Tralongo). Nor is this a case where the person had a mental condition which they themselves accepted prevented them from studying (cf. PJPF).
I am further satisfied that, in relation to the semester 1 units, the special circumstances did not make their full impact on the person until on or after the census dates for the units of study because, under 3.10.1, it is clear they worsened after that date (on the evidence of several and prolonged later hospital admissions in 2017). The Tribunal notes and accepts the concession by the Secretary in the RSFIC, which accepts that CNPG has demonstrated that it was impracticable for her to complete the requirements of the units because of her medical conditions, and that this issue is not in dispute between the parties (see s 36.21(c) of the HES Act).
I find, marrying the legislative requirements and the guidelines, that the Tribunal is satisfied the requirement for CNPG to have applied within the application period should be waived on the ground that it would not be, or was not, possible for her to make the application before the end of that period (s 36.20(1)(f)(ii)). I further find that the special circumstances in relation to the semester 1 units were, in terms of s 36.21(a) of the HES Act, beyond the control of CNPG and made their full impact on her on or after the census date, for the purposes of s 36.21(1)(b) of the HES Act. Although it is conceded by the Respondent, I additionally find that the requirements of s 36.21(1)(c) of the HES Act are met.
Concession by Applicant
The Tribunal notes and accepts the concession by CNPG in her closing submissions at the end of the hearing that she could not maintain that she was faced with abnormal circumstances in relation to the semester 2 units. That is not to say that her condition at that time had vastly improved, but I take it that she conceded that the trajectory then was not ‘flaring’ (and therefore did not have the quality of being uncommon or abnormal). I accept this concession fairly made because, again, on the weight of the evidence and reviewing the dates of hospital admissions, the situation later in 2017 was no better for her, but regrettably, through the lens of her then mental health state, it cannot be found to have been unusual in the sense of her persisting with the enrolment.
I formally find that CNPG’s case for the remission of the semester 2 units is not made out, and, in regard to Semester 2 of 2017, the reviewable decision is affirmed.
CONCLUSION
The Tribunal notes the sympathy expressed by the Respondent about the health conditions with which the Applicant has contended, and also the advice at the hearing from CNPG that her mental health state is significantly better now than it was in 2017. The Tribunal expresses a hope that she is again able to engage in academic studies when her personal circumstances permit. However, she should be mindful not to bite off more than she can chew.
DECISION
The reviewable decision, which is taken to have been made on 10 May 20, is set aside and, in substitution therefore, the Tribunal decides under s 43(1)(c) of the AAT Act as follows:
(a)The Applicant’s circumstances in relation to remission of the HECS-HELP debt for the four units she enrolled in at FUA in Semester 1, 2017 constituted special circumstances as defined by s 36.21 of the HES Act.
(b)The Applicant’s circumstances in relation to remission of the HECS-HELP debt for the three units she enrolled in at FUA in Semester 2, 2017 did not constitute special circumstances as defined by s 36.21 of the HES Act.
(c)The result is that the Applicant’s Semester 1, 2017 debt of $4,041 is remitted, and her Semester 2, 2017 debt of $3,441 is confirmed.
(d)The matter is returned to the Respondent for recalculation of the debt to the Commonwealth, in accordance with this decision.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

........................[SGD]................................................
Associate
Dated: 15 December 2022

Date of hearing:

18 November 2022

Applicant:

CNPG (self-represented)

Advocate for the Respondent:

Ms Josie Walker

Solicitors for the Respondent:

Maddocks Lawyers

Date of hearing:	18 November 2022
Applicant:	CNPG (self-represented)
Advocate for the Respondent:	Ms Josie Walker
Solicitors for the Respondent:	Maddocks Lawyers