GHJF and Secretary, Department of Education

[2023] AATA 2914

GHJF and Secretary, Department of Education [2023] AATA 2914 (13 September 2023)

Division:GENERAL DIVISION

File Number:          2022/1924

Re:GHJF  

APPLICANT

AndSecretary, Department of Education

RESPONDENT

DECISION

Tribunal:Senior Member K. Parker

Date:13 September 2023

Place:Melbourne

For the reasons set out below, the Tribunal sets aside the Decision Under Review and in substitution, decides by operation of s 104-25 of the Higher Education Support Act 2003 (Cth), that Deakin College, the higher education provider, must, on the Secretary’s behalf, re-credit GHJF’s HELP balance with an amount equal to the amounts of FEE-HELP assistance in respect of the three units of study undertaken by them in the first trimester of 2018.

.............................[sgd]...........................................

Senior Member K. Parker

Catchwords

HIGHER EDUCATION SUPPORT – application to re-credit FEE-HELP balance pursuant to s 104-25 of the Higher Education Support Act 2003 (Cth) – whether the Tribunal should waive the requirement for the application for remission of debt to be made within “application period” as defined under s 104-30 – whether “special circumstances” applied under Part 3 of the Higher Education Support (Administration) Guidelines 2022 (Cth) – decision set aside and substituted with decision to re-credit the Applicant’s HELP balance by amounts equivalent to the FEE-HELP assistance amounts in respect of the relevant units

Legislation
Higher Education Support Act 2003 (Cth), s 36-20, s 36-21, s 101-1, s 104-1, s 104-25 s 104-30, s 104-35, s 206-1, s 107-1, s 110-1, s 209-10, s 212-1
Higher Education Support (Administration) Guidelines 2022 (Cth), s 12, s 13, s 14

Cases
Williams and Secretary, Department of Education and Training (2016) ALD 565

REASONS FOR DECISION

Senior Member K. Parker

13 September 2023

1. The Applicant, GHJF (pronoun: they/them), was a student at Deakin College (Deakin).[1] In the first trimester of 2018, GHJF commenced study of the following three units (Three Units) forming part of a Diploma of Health Sciences course (Course):

   (a)SLE111 – Cells and Genes;

   (b)SLE133 – Chemistry in Our World; and

   (c)SLE115 – Essential Skills in Bioscience.

   [1] Of its own volition, the Tribunal made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) to use a pseudonym in place of the Applicant’s name to protect their identity when publishing these reasons for decision. This order was made due to the type of medical and clinical evidence tendered to the Tribunal and to minimise any distress which might otherwise be caused to the Applicant if this information was made publicly available.

2. GHJF withdrew from the Three Units on 5 April 2018, being eight days after the relevant census date of 28 March 2018 (Census Date).[2]

   [2] T-Documents, T17.

3. GHJF is seeking the remission of a FEE-HELP debt in relation to the Three Units.

4. The Respondent has refused to grant GHJF’s request for a remission of debt (RoD) in respect of the Three Units for the following reasons:

   (a)GHJF made their RoD application in respect of the Three Units after the expiry of the 12-month statutory time frame under s 104-35 of the Higher Education Support Act 2003 (Cth) (HES Act); and

   (b)the Respondent (by his delegate) was not satisfied that he should waive this requirement under s 104-35, because he considered that it was possible for GHJF to submit their RoD application within the statutory 12-month period.

5. The Respondent contends that even if the Administrative Appeals Tribunal (Tribunal), upon review, decides to exercise its discretion to waive this requirement under s 104-35 of the HES Act, the Respondent is not satisfied that “special circumstances” within the meaning of s 104-30 of the HES Act applied to GHJF in respect of the Three Units. Consequently, the Respondent contends, in the alternative to the reasons set out in the above paragraph, that GHJF is not eligible to have their FEE-HELP debt for those Three Units remitted.

6. The Tribunal’s jurisdiction to undertake this review arises under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) operating in conjunction with s 212-1 of the HES Act. Section 212-1 of the HES Act provides that a reconsideration decision by a higher education provider of a “reviewable decision” can be reviewed by this Tribunal. Item 2 of s 206-1 of the HES Act provides that a decision by a higher education provider that s 104-25 of the HES Act does not apply to a person in relation to a unit of study is a “reviewable decision”.

7. The decision under review in this proceeding is a reconsideration decision by Mr Hamid Khattak, College Director and Principal of Deakin dated 28 January 2022 (Decision Under Review), confirming an earlier decision by Deakin’s delegate for the Respondent dated 19 November 2021,[3] to refuse GHJF’s application for RoD in respect of the Three Units. Mr Khattak considered that there was insufficient evidence to demonstrate that GHJF’s circumstances had rendered it impractical for them to fulfill the criteria as specified in the FEE-HELP application.

   [3] T-Documents, T21/128.

8. On 8 March 2022, GHJF lodged an application for review of decision with this Tribunal seeking review of the Decision Under Review. GHJF states that their reason for making this application was that they withdrew from the Three Units due to “extremely poor mental health and diminished coping”, having been diagnosed with anorexia nervosa, obsessive compulsive disorder (OCD), generalised anxiety disorder (GAD) and more recently having been diagnosed with attention deficit hyperactivity disorder (ADHD). GHJF states that they were unaware of the FEE-HELP debt that had arisen in relation to the Three Units until they noted it on their tax return, upon which they “promptly applied” to Deakin for re-credit of the FEE-HELP debt. GHJF stated that, at the time, they were focussed on “getting some serious help” with their mental health issues and trying to manage their basic activities of daily living.[4]

   [4] T-Documents, T1/6.

9. The Respondent lodged with the Tribunal a set of documents under s 37 of the AAT Act (T-Documents) and a supplementary set of documents under s 38AA of the AAT Act (Supplementary T-Documents). GHJF lodged a personal statement dated 15 March 2023, attaching documentary evidence including medical records and reports (GHJF’s Statement). GHJF also lodged a personal statement dated 16 March 2023 made by their mother (M’s Statement). At a Directions Hearing before this Tribunal on 14 April 2023 and by subsequent correspondence, the parties provided their consent to this matter being heard “on the papers”. On 26 May 2023, GHJF lodged their Statement of Facts, Issues and Contentions (GHJF’s SFIC) on 26 May 2023. The Respondent lodged his SFIC on 26 July 2023 (Respondent’s SFIC). GHJF lodged their Statement in Reply (Reply Statement) on 16 August 2023. GHJF was unrepresented in this application. The Respondent was represented by HWL Ebsworth Lawyers.

10. For the reasons given below, the Tribunal sets aside the Decision Under Review and in substitution, decides by operation of s 104-25 of the HES Act, that Deakin College, the higher education provider, must, on the Secretary’s behalf, re-credit GHJF’s HELP balance with an amount equal to the amounts of FEE-HELP assistance in respect of the Three Units of study undertaken by them in the first trimester of 2018.

    LEGISLATIVE BACKGROUND

11. A statutory objective of the HES Act (among others) is to support a higher education system that is characterised by diversity and equity of access: refer s 2-1(a)(i) of the HES Act. The HES Act provides that a student may be entitled to FEE-HELP assistance for units of study for which they are not Commonwealth supported if certain requirements are met. The amount of FEE-HELP assistance is based on the tuition fees for the units and the assistance is paid to a higher education provider to discharge the student’s liability to pay the tuition fees.[5]

    [5] Part 3-3 of HES Act – see explanation provided in s 101-1.

12. The amount of assistance to which a person is entitled is the difference between the student’s tuition fee for the unit and the sum of any up-front payments required to be paid in respect of the unit of study (s 107-1 of the HES Act). The Commonwealth will lend the amount of the FEE-HELP assistance to the student and pay that amount to the relevant higher education provider (s 110-1 of the HES Act).

13. Section 104-25 allows a student to seek remission of debt arising from the payment of FEE-HELP assistance by the Commonwealth to the higher education provider. The relevant parts of this provision are reproduced below:

    104-25Main case of re-crediting a person’s HELP balance in relation to FEE-HELP assistance

    (1A)…

    (1)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 *FEE-HELP assistance that the person received for a unit of study if:

    (a)the person has been enrolled in the unit with the provider; and

    (aa)access to the unit was not provided by *Open Universities Australia; and

    (b)the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake the unit; and

    (c)the provider is satisfied that special circumstances apply to the person (see section 104-30); and

    (d)the person applies in writing to the provider for re-crediting of the HELP balance; and

    (e)either:

    (i)the application is made before the end of the application period under section 104-35; or

    (ii)the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.

    (2)…

14. Section 104-35 provides as follows:

    104-35Application period

    (1)If:

    (a)the person applying under 10-25(1)(d) for the re-crediting of the person’s *HELP balance in relation to a unit of study has withdrawn his or her enrolment in the unit; and

    (b)the higher education provider gives notice to the person that the withdrawal has taken effect;

    the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

    (1A)…

    (2)If subsections (1) and (1A) do not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.

15. The requirements in subsections 104-25(1)(a) to (e) are cumulative and each of them must be satisfied. Relevant to this application:

    (a)subsection 104-25(1)(d) requires GHJF to have made an application in writing for the re-crediting of the HELP balance (or RoD). This requirement was met as GHJF made their application for RoD in writing on 5 April 2018;[6]

    (b)subsection 104-25(1)(e) requires GHJF to have made their RoD application before the end of the application period as set out in s 104-35 above (that is, being 12 months after the day specified in the notice from Deakin that GHJF’s withdrawal from the Three Units had taken effect (Application Period)), or that Deakin has waived this requirement “on the ground that it would not be, or was not, possible for the application to be made before the end of” the Application Period. Deakin contends this requirement is not met as the application for RoD was made after the Application Period and Deakin is not prepared to waive the requirement under s 104-25(1)(e)(ii) of the HES Act; and

    (c)subsection 104-25(1)(c) requires that the decision-maker is satisfied that “special circumstances” applied in respect of GHJF in relation to the withdrawal by GHJF from the Three Units after the Census Date. Deakin contends this requirement is not met as it is not satisfied that there were special circumstances in GHJF’s case.

    [6] T-Documents, T18/118-119.

16. Section 104-30 of the HES Act, reproduced below, specifically addresses the meaning of “special circumstances” for the purpose of s 104-25(1)(c) of the HES Act:

    (1) For the purposes of paragraphs 104-1A(2)(b) and 104-25(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:

    (a)         are beyond the person’s control; and

    (b) do not make their full impact on the person until on or after the *census date for the unit of study in question; and

    (c) make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake the unit.

    (2) If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.

17. Section 238-10 of the HES Act makes provision for the Minister to make Administration Guidelines, by legislative instrument, providing for the matters in ss 19-37, 33-30, 36-13, 36-21 and Chapter 5 of the HES Act, and FEE-HELP Guidelines providing for the matters in Part 3-3 and s 128-20 of the HES Act, or “necessary or convenient to be provided in order to carry out or give effect to that provision”.

18. On 17 March 2022, the Minister[7] made the Higher Education Support (Administration) Guidelines 2022 (HES (Administration) Guidelines). They superseded the Administration Guidelines 2012 (Cth) (Administration Guidelines 2012). A question arises in relation to which of these Guidelines should be applied when the Tribunal makes its decision in this matter. The guidelines in force at law, at the time GHJF withdrew from the Three Units was the Administration Guidelines 2012 but the guideline in force at law, at the date making this Decision on 13 September 2023, is the HES (Administration) Guidelines. The Tribunal will apply the HES (Administration) Guidelines when making its decision but notes that its decision does not turn on this issue as the successive sets of guidelines are essentially the same.[8]

    [7] The Minister for Employment, Workforce, Skills, Small and Family Business.

    [8] The Tribunal notes that the provisions in successive guidelines relating to the decisions made in this application, that is, ss 12 to 15 of the HES (Administration) Guidelines and ss 3.1, 3.5, 3.10 and 3.15 of the Administration Guidelines 2012, are essentially the same as set out below, meaning that nothing turns on this issue as to which set of guidelines applies to a decision made by the Tribunal now in this proceeding.

19. Part 3 of the HES (Administration) Guidelines deals with the meaning of “special circumstances” and provide as follows:

    12Circumstances 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.

    13  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.

    14  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.

    ISSUES

20. GHJF made their request for a RoD in respect of the Three Units in writing but they did so after the 12-month Application Period had ended, meaning that the requirement under s 104-25(1)(e)(i) of the HES Act is not met.

21. Consequently, the first issue to be decided by the Tribunal in this proceeding, is whether, under s 104-25(1)(e)(ii) of the HES Act, it should waive the requirement under s 104-35 of the HES Act as referred to above, “on the ground that it would not be, or was not, possible for the application to be made before the end of that period”.

22. If the Tribunal decides that this requirement should be waived, the Tribunal will proceed to a consideration as to whether it is satisfied that “special circumstances” applied, within the meaning of s 104-30 of the HES Act, in respect of the withdrawal of the Three Units by GHJF after the Census Date.

    BACKGROUND

23. GHJF is 25 years old. At the time they commenced the Three Units in the first trimester of 2018, they were 19 years old.

24. GHJF has a history of severe psychosocial disorders. GHJF states that they were diagnosed with the condition of “generalised anxiety disorder” in about 2014 when they were 16 years old and that this condition had a significant impact on their attendance at school. GHJF said they frequently experienced panic attacks and often stayed home as a result.[9]

    [9] GHJF’s Statement, p.1.

25. GHJF’s medical history referred to them having been diagnosed with anorexia nervosa in about April 2015.[10] This condition was reported to have caused GHJF to miss about eight months of secondary school. GHJF states that they missed several months of school to receive re-feeding treatment involving psychotherapy, counselling, and consultations with a paediatrician, Dr SA, at Eastern Health.[11] GHJF states that this time they were medically unfit to leave the house and it was an isolating and distressing time for them.[12]

    [10] Letter from Eastern Health dated 19 December 2016 and GHJF’s Statement, p.1.

    [11] GHJF’s Statement, p. 1.

    [12] Ibid.

1. The Tribunal notes the letter from Dr SA dated 19 December 2016 confirming that GHJF was treated at the Paediatric Eating Disorder Clinic at Eastern Health and discharged back into the care of their general practitioner, Dr C, at this time.  The Tribunal acknowledges how extremely difficult this must have been for GHJF. Despite those challenges, at the end of 2016, GHJF states they were physically well enough to attend school at a reduced capacity with accessibility adjustments and they were able to successfully complete their Victorian Certificate of Education.[13] The Eastern Health Treatment Summary dated 28 June 2018 records that GHJF’s file at Child and Youth Mental Health Service (CYMHS) was closed in December 2016.

   [13] Ibid.

2. GHJF states that, in 2017, they obtained a full-time job as a medical receptionist in a radiology clinic and so decided to commence their tertiary studies the following year.[14]

   [14] Ibid.

3. On 26 August 2017, GHJF submitted an online application for enrolment at Deakin to undertake the Course.[15] GHJF states that they disclosed their mental health history in detail in their personal statement that was included with their application for enrolment.[16] This “personal statement” is dated 26 August 2017 (GHJF’s Enrolment Statement). It stated that GHJF was diagnosed in June 2014 with GAD and that this disorder had negatively impacted upon their ability to concentrate on schoolwork and made it difficult for them to attend school. GHJF’s Enrolment Statement also disclosed their diagnosis of anorexia nervosa in April 2015, requiring them to be taken out of school at the time.

   [15] Supplementary T-Documents, ST4/9.

   [16] Exhibit A2 (GHJF’s Document No.2 lodged with the Tribunal on 26 May 2023).

4. The Respondent does not acknowledge GHJF’s Enrolment Statement in his SFIC. Instead, he asserts to the contrary that GHJF had not made Deakin aware that they had a disability at the time of their enrolment because they had ticked the “No” box, on the Deakin course online application form, after the question: “Has Disability and request learning support?”.[17] While this is true and may have created some confusion, the Tribunal finds that GHJF made Deakin aware at the time of their enrolment about their various medical issues and their previous diagnoses. It would seem that GHJF’s Enrolment Statement attached to their online application was not considered or acted upon by Deakin, nor the Respondent’s legal representatives when drafting paragraph [59] of the Respondent’s SFIC.

   [17] Supplementary T-Documents, ST4/11.

5. GHJF’s application was accepted and they commenced undertaking the Three Units at Deakin on 5 March 2018. The equivalent full-time study load of each of the Three Units was 0.125. At this time, GHJF was terminated from their employment because GHJF stated their employer did not want to support them working part-time while they were undertaking the Course. GHJF described this as being a highly stressful time for them as they had to find a new job to support themself and to establish a whole new routine before commencing their studies.[18]

   [18] Ibid.

6. As mentioned above, in the first trimester of 2018, the Census Date for the Three Units was 28 March 2018. In GHJF’s Statement, they described what it was like for them when they first commenced their studies at Deakin as follows:[19]

   In 2018, I started my studies at Deakin College and struggled from the beginning. I was unable to focus in class, and I found it challenging to understand the chemistry and mathematical concepts required for the course. I sought tutoring from Deakin and support from my family members who had careers in science and health, but despite my efforts, I was unable to keep up with the coursework. Additionally, I was struggling to make friends, and my teachers were not very supportive of my additional needs, adding to the mounting pressure.

   The pressure of the course and my mental health struggles took a significant toll on me. I began seeing the brief intervention psychology team at Eastern Health during this time, but ultimately, I had to withdraw from the course only a few weeks in as I was not coping, and I was not getting the support I needed from the college.

   In retrospect, I have come to realize that my struggles were further compounded by other underlying conditions that were yet to be diagnosed. For instance, it was only later in life that I was diagnosed with ADHD and Autism. These conditions made it challenging for me to process and understand complex information, especially in subjects like chemistry and mathematics.

   Additionally, during this time, I was also battling an undiagnosed chronic illness called Postural Orthostatic Tachycardia Syndrome (POTS). This condition causes me to have extreme tachycardia (fast heart rate) making normal everyday tasks physically exhausting, causing migraine, brain fog, chronic fatigue, widespread pain, dizziness, and nausea, and limiting my capacity to work and study. I was finally diagnosed in April of 2022 by cardiologist Dr Melanie Freeman (see attached).

   Withdrawing from the course was a difficult decision to make, but at that point in time, my mental and physical health became so poor that it was hard for me to stay alive every day, and too difficult for me to carry out my usual activities of daily living, let alone focus on my studies and meet the coursework deadlines. At this time, I was struggling with diminished coping and was incapable of considering the consequences of my withdrawal, and I did not understand that further paperwork was required to request remittance of my FEE HELP debt.

   [19] GHJF’s Statement, p.1.

7. On 21 March 2018, GHJF contacted Eastern Health mental health support and the following day, they attended an appointment with the Brief Intervention Clinic.[20]

   [20] GHJF’s SFIC, p.2.

8. On 25 March 2018, GHJF wrote to SC, a lecturer at Deakin, to ask about the requirements for assignment 1 in Unit SLE115 regarding the number of databases to be used. In this email, GHJF referred to having trouble with their concentration and also referred to their inability to attend a lecture in Unit SLE111 on 26 March 2023 as they would be attending a medical appointment. SC told GHJF not to worry about missing this lecture.[21]

   [21] T-Documents, T14/110.

9. On 27 March 2018, LH, Senior Clinical Psychologist, and NW, Provisional Psychologist, wrote to Dr GA, general practitioner. This letter states that GHJF had referred themself to the Eastern Health CYMHS and that they had been allocated to the Deakin Focus Brief Intervention Clinic for intervention. The email states that GHJF had, by 27 March 2018, attended one session.

10. Friday, 30 March 2018, was the Good Friday public holiday.

11. On 2 April 2018, GHJF emailed SC to confirm the due date for submission of assignment 1 in relation to Unit SLE115.[22]

    [22] Ibid, T15/113.

12. On 5 April 2018, GHJF withdrew from all Three Units.[23] GHJF’s evidence is that they were unaware that they had incurred a FEE-HELP debt in relation to the Three Units until the “2021 tax season” when their income exceeded the repayment threshold. Upon becoming aware, GHJF states that they immediately applied for the re-credit of the FEE-HELP assistance. There is a document contained in the T-Documents (T20) which was described by the Respondent as “Screenshot of Applicant’s initial application for fee remission for Units in Trimester 1, 2018 (‘Application’)” which has the date of “November 2021” ascribed to it by the Respondent. It is not clear from the documentation when this application was made, but there was no dispute between the parties that GHJF had made a written application for the re-crediting of the FEE-HELP assistance for these Three Units at about this time. The Tribunal finds accordingly.

    [23] Ibid, T18/118.

13. The Treatment Summary (Summary) from Eastern Health dated 28 June 2018 shows that GHJF received four behavioural intervention sessions on 27 March 2018, 9 April 2018, 23 April 2018, 14 May 2018, and a telephone call on 28 June 2018.[24] This Summary states that GHJF had attended the Clinic in March 2018 reporting their “main concern” as the “intrusive thoughts that were distressing and impacting” on their “life and concentration” and “overwhelming fatigue” they had been feeling in the past two months (e.g. lethargy and brain fog) for which no organic cause had been found. This Summary also states that GHJF had reported “low mood and amotivation” and had “denied symptoms of eating disorders and reported being proud of [their] recovery from Anorexia over the past 18-24 months”. The Summary states that GHJF had a private psychologist (providing counselling remotely through Skype) but that GHJF had “opted to call [CYMHS triage number] in an attempt to return to CYMHS as [they] had found them helpful in the past”.

    [24] Exhibit A7: (Lodged by GHJF on 26 May 2023).

14. The Summary also states that, at the time of intake in March 2018, GHJF was studying full-time which they had found “challenging and motivating”. The Summary refers to GHJF having moved in with [their] boyfriend in April 2018 and that their parents were moving away.

15. The Summary refers to the mental health examination of GHJF undertaken by a senior clinical psychologist and provisional psychologist (Psychologists) on 14 May 2018. The Psychologists reported the following observations:

    (a)GHJF was not under-weight, did not report restricting their meals, and their hygiene and grooming appeared “attended to”;

    (b)GHJF appeared engaged in the session and presented with “normal behaviours”;

    (c)GHJF’s attention, memory and concentration were not formally assessed; however, they appeared intact as they were “able to recall near and remote events from [their] personal difficulty with perceived difficulty”;

    (d)GHJF had reported suicidal ideation approximately three months prior and had said that they would “never act on this” and promised to speak to their boyfriend if it happened again. The Summary stated that, otherwise, GHJF did not report any current suicidal (or homicidal) ideation or intent and it was noted that this was not directly assessed; and

    (e)no thought disorder or perceptual disturbances were observed; and

    (f)GHJF had demonstrated good insight by “help-seeking regarding intrusive thoughts” and that their judgement was intact.

16. On 28 June 2018, the Psychologists and one further provisional psychologist wrote to GHJF.[25] In this letter, they refer to their sessions with GHJF as part of the Brief Intervention Clinic coming to an end. They refer to having met with GHJF one-on-one on four occasions which had allowed them to discuss what had been going on with GHJF, develop strategies to reach GHJF’s goal of “hitting the nail on these intrusive ‘shitty thoughts’”[26] that GHJF was having, and they referred to GHJF’s condition of OCD and having overcome anorexia nervosa.

    [25] Exhibit A6: (Lodged by GHJF on 16 May 2023).

    [26] Ibid, p.1.

17. Under the heading “Risk Assessment”, the Summary, stated to have been completed at discharge on 28 June 2018, refers to GHJF having had suicidal thoughts in the past in approximately December 2017 and that they had “no current suicidal ideation, plans or intent”.[27] The previous diagnosis of anorexia nervosa was referred to in the risk assessment and mention was made of GHJF’s mother being concerned about GHJF restricting meals in approximately March 2017 and that GHJF had reported fatigue since recovering from this condition. The risk management strategies listed in this section of the Summary referred to GHJF seeking out a referral option for a clinical psychologist via Eating Disorder Victoria, who is “experienced in OCD treatment”.

    [27] Exhibit A7: (Lodged by GHJF on 26 May 2023).

18. In the Summary, the “formulation/clinical impressions” of the treating senior clinical psychologist and provisional psychologist were recorded as GHJF having presented with “intrusive thoughts” mostly regarding health anxiety (for example, food not being cooked properly and accidently making themself and others sick or getting sick from others such as babies). The psychologists stated that GHJF had reported having recovered from anorexia nervosa (which was focused on GHJF’s fear of vomiting and contamination) over 18 months prior. The psychologists stated that, based on the current information and GHJF’s self-reporting, the “primary distressing and impairing symptom is intrusive thoughts and mental checking of these thoughts”. The psychologists reported that GHJF was undergoing numerous life stressors, referring to their transition in April 2018 to live with their boyfriend and his parents, having started and then deferred tertiary studies and “working in a new job with extra hours as medical receptionist”.

19. In the Summary, the psychologists opine that “the increased stress around many recent changes may have increased [GHJF]’s physiological arousal and anxiety symptoms, increasing [their] hypervigilance around unwanted thoughts”. The psychologists stated in the Summary that GHJF had found out about another person’s (name redacted) “sexual abuse”, triggering intrusive thoughts. The psychologists stated that GHJF “has recently been very upset by this, believing that [they were] not able to process it at the time”, and had reported that the “recent frequent media attention on sexual offending by religious (?) [sic] associated with the recent Royal Commission had been a trigger”.

20. In this Summary, the psychologists made the following statement:

    [GHJF] deferred university for a year due to concerns [they were] not achieving as well as [they] would like (though had not completed assessment yet) and due to the stress of many changes. [They] reported being pleased and relieved with this decision. It is possible that deferring university may inadvertently reinforce dichotomous ideas that [they need] to achieve extremely well or not do study at all.

21. In the Summary, the psychologists refer to GHJF reporting to them:

    (a)of being capable in their area of employment as a medical receptionist;

    (b)they had held a number of jobs; and

    (c)they had hopes for the future including possibly becoming a doctor and also having children one day;

    (d)they engaged in and found enjoyment in a range of activities, including going to the city, eating out, swimming and that they had hopes of overseas travel; and

    (e)they had friends that they enjoyed spending time with and they had begun social drinking of alcohol which they had not been able to do in the past, out of fear of vomiting.

22. In the “Future Management Plan” section of the Summary, the psychologists report that GHJF’s recent symptoms (for example, intrusive thoughts) had lessened in frequency and intensity, GHJF had sought support and referrals through Eating Disorders Victoria for a psychologist and had begun seeing a dietitian who uses mindful eating strategies which had been positive.

23. GHJF was assessed by a psychiatrist, Dr AD, who issued a report dated 18 January 2020.[28] Dr AD referred to GHJF working as a medical receptionist and that they had presented for “evaluation of [their] chronic anxiety and attentional deficits”. Dr AD diagnosed GHJF with adult ADHD (mild), OCD, GAD, and anorexia nervosa (in remission). Dr AD recommended that GHJF commence on “anti-obsessional treatment before commencing ADHD treatment”, subject to later revision. Dr AD prescribed fluvoxamine 50 mg/week to gradually increase to 150 mg nocte. Dr AD recommended other pharmaceutical options for GHJF being sertraline and fluoxetine. Dr AD recommended cognitive behavioural therapy for perfectionism but also addressed emotional awareness and social skills training.

    [28] Exhibit A8: (Lodged by GHJF on 26 May 2023).

24. On about 14 April 2022, GHJF was examined by Dr MF, general and interventional cardiologist.[29] Dr MF referred to GHJF having had an elevated heart rate for “several years now”, particularly when standing, and that it was “associated with a faint feeling, tremor and nausea”. Dr MF states in this report that the symptoms also occur on exertion, when GHJF is in the shower or walking upstairs. Dr MF states that all the symptoms that GHJF had described were “very classic for neurocardiogenic presyncope or POTS”. Dr MF reports that the investigation showed sinus tachycardia (which in one type of fast heartbeat) and recommended that they increase their fluid intake, reduce their salt intake, and that they commence on fludrocortisone 0.1 mg daily to elevate their blood pressure, hoping this would reduce their heart rate.

    [29] Exhibit A9: (Lodged by GHJF on 26 May 2023).

25. GHJF’s treating psychologist, LS, issued an open letter on 20 February 2023 stating as follows:[30]

    I am writing in support of [GHJF]’s application to re-credit their FEE-HELP loans. I’ve been treating [GHJF] in my capacity as a clinical psychotherapist, and what follows is my professional opinion based on our ongoing work and my observations of their past and current mental state.

    Prior to and following [GHJF]’s withdrawal from the course in 2018, they experienced prolonged period of extremely poor mental health and diminished coping. During this period [GHJF]’s anxiety and executive dysfunction was extreme and they were unable to manage many of the tasks of daily living, let alone keep track of paperwork, deadlines, and the possible longer-term consequences of their withdrawal. This was beyond their control and led to them missing the census date for withdrawing. At this time, it was not practical for [GHJF] to complete the course and withdrawing was their best and only option for their health.

    [GHJF] has been working proactively on their mental health and is now in a much more stable place. However, it is evident to me that they were unable, in the year following their withdrawal, to make this application due to their mental state at that time.

    Please feel free to contact me on the details listed below if there is anything more you need from me.

    [30] Exhibit A10: (Lodged by GHJF on 26 May 2023).

26. The respondent contended the Tribunal should not rely upon this evidence because LS was not treating GHJF at the time they withdrew from the Three Units or during the 12-month application period. The Tribunal was informed before the hearing by LS that he had commenced treating GHJF in March 2021. In response to this criticism by the Respondent, GHJF obtained a medical report from their former treating psychotherapist, JB, who issued a letter dated 10 March 2023, referring to their past treatment of GHJF between 2015 and 2017.[31] JB states in this letter:

    I am writing to confirm my former client [GHJF] attended treatment with me from 2015 – 2017. At the time they presented with complex Axis 1 mental health concerns. I have spent some time in the past weeks reviewing [GHJF]’s historical files and can attest that the nature of their mental health presentation at the time of cessation of treatment was at high risk of continuation of symptoms and potential relapse.

    Symptoms were present and significant at time of treatment’s end I expect they continued to be present in subsequent years.

    The mental health conditions that [GHJF] was diagnosed with at the time hold a high rate of relapse. From my knowledge of [GHJF]’s case it is likely that these ongoing mental health concerns were relevant to [their] inability to continue [their] university course.

    I request special consideration is taken into account in [their] academic performance and attendance over this time, and request for refund of [their] course due to mental ill health.

    I am happy to be contacted if any further information is required.

    [31] Exhibit A11: (Lodged by GHJF on 26 May 2023).

27. In GHJF’s Statement, GHJF contends as follows:[32]

    There were only 3 working days between the census date and the date of my withdrawal from the course.

    As I have mentioned, in March 2018 I suffered a relapse that severely impacted my health. However, I was able to overcome this challenging period with the aid of significant therapy (proof attached) and support from my loved ones. I was able to regain a more stable and sustainable mental state and make progress in my career. Everything seemed to be moving forward until August 2021, after I had taken a significant step in my profession and began earning over the HELP repayment threshold at the time. It was only after receiving my tax return for that year that I learned of a substantial FEE HELP debt (>$11k) from the course I withdrew from in April 2018.

    Upon discovering the FEE HELP debt, I promptly contacted Deakin College for assistance in applying for special consideration to have the debt waived, given my circumstances.

    Despite multiple attempts to provide evidence and information to Deakin College, they continued to reject my request for the recredit of FEE HELP debt. Their persistent rejection of my request led me to have to seek redress through the administrative appeals tribunal.

    Being forced to shell out a substantial sum of over a thousand dollars to have my case heard by the admin appeals tribunal was an enormous financial setback that as a single person living with multiple disabilities, I am still struggling to recover from. I have also had to pay several hundred dollars to access the evidence I have attached with this statement. What's worse, during the recent case conference, the ?solicitor representing the Department of Education made disgustingly ableist comments. She attempted to draw a comparison between her level of understanding when signing her own university documents as a young adult, and my level of understanding when signing my university documents.

    This demonstrates to me that the individuals handling my case may be ignorant of the true impact of chronic illness, mental illness, and disability in general, which is concerning given they would have already read the deeply personal impact statements and psych evidence I have provided thus far.

    [32] GHJF’s Statement, p.2.

1. In M’s Statement, M provided the following account of GHJF’s situation:[33]

   [33] Exhibit A13: (Lodged by GHJF on 26 May 2023).

   The reality for [GHJF], at this time, was they were much better at planning for going to Deakin University than being at Deakin University. They weren’t ready for this, and Deakin University certainly wasn’t capable of supporting them or showing them any concessions for they mental health issues and struggle. Deakin wasn’t even clear that there were outstanding additional course fees to pay until [GHJF] found out 2 years later whilst preparing a tax return.

   After reading their application letter why did NO one single person within Deakin University stop and think about the kind of support that a student with these challenges would need? Where IS there a protocol for a student intake with exceptional circumstances where the welfare and mental health of an accepted student is supported or watched or even monitored? Who is there to assist and support accepted students with mental health challenges history?

   Study and classes and attending and finding time to figure out how and what to eat, sleep and study was very difficult from Day 1 (even a practice run to Deakin University in the days before starting to make sure of timing and parking) and yet within a week it was very clear they were already hitting a wall.

   See, for you and I, we manage day to day with little or mostly no regards for what breakfast, lunch, dinner, drinks or snack might look like and we certainly have no regard for never endingly relentless OCD patterns and mannerisms that hold together an entire process from dawn until dusk. [GHJF] had these for every moment of every day and still wanted to dare to dream of their future……….

   After week 1 [GHJF] and I talked about how their week had been and what they could to help themselves at Deakin Uni. [GHJF] reached out for a tutor & support services just after the first week as they had started to spiral. In week 2 the tutors times clashed with class timetables and no other supportive services we made available to them. BY week 3 it was clear that they weren’t going to get enough support to continue even with all their family support. Deakin University lacked the support service that they needed to continue. On Thursday the 5th of April 2018 [GHJF] let Deakin Uni Know that they could no longer continue as it was too much of a demand on them it was too much for them to maintain each day. [GHJF] recently showed me the letter they wrote on their application to Deakin University where they stated they spent ‘a lot of their free time reading any health books and health information services I can find.’ In actual fact [GHJF]’s obsessions had re surfaced and taken a very strong hold and health books and health information services were every waking moment in every day. Obsessive thoughts about Health is part of their anorexia illness and often drives ‘the Beast’ that is anorexia. The beast was threatening to return and we are again guiding them to work with their mental health support team services, so I know they were in treatment whilst starting those first 2 weeks of Deakin University in 2018.

   I’m hoping this letter will give you a clearer understanding of [GHJF]’s state of mind at the commencement of Uni in 2018 although I don’t expect anyone other than their family, mental health team and [GHJF] themselves will ever fully comprehend their daily challenges that come along with the mental illness associated with Anorexia OCD or their anxiety. I quietly wondered, back in 2018 before [GHJF] started Deakin Uni, if such a large Youth focused network like Deakin Uni was able to support such needs in a student…sadly it was evident, surprisingly quickly, that there was a great hole in systems at Deakin University such that it allowed [GHJF] to a. apply for… b. accept into… c. start at and then d. so promptly withdraw from the university but that really is the nature of the ‘business of education’, where was the ‘duty of care’?

   [GHJF] was not just a student ID number who slipped through the Great University cracks created to catch out those that can’t make it, [GHJF] is and was, even back in 2018, a true fighter with grit and stamina that has seen them through extraordinary mental health challenges that are unimaginable to you and I. [GHJF]’s well documented mental health battles and challenges have finally, after more than 6 years, subsided. they are a very warm, happy, productive and a fulfilled member of their community and family. They are kind, supportive, thoughtful and open to all in their life and community ands(sic) it worth all their effort to see them live this way.

   You requested that I write my thoughts down to support [GHJF]’s application to have their semester 1 fee charges credited. Well, there you have it.

   You asked me to mention why I felt so strongly that there were exceptional circumstances to [GHJF]’s claim to have their semester 1 fee charges credited…. Well, there you have it!

   You asked me to mention in my support letter what [GHJF]’s Mental state would have been at the time that they decided to quit the program after just 2.5 weeks into the course. Well, I think you should really ask yourself this question; “what state of mind do you think [GHJF] must have been in to be so overwhelmed with starting at Deakin University that after 5 days of classes they couldn’t even conceive of continuing!” Ask your university leaders this “What did we do to help them? Where is the proof of our duty of care? What can we do better in the future to support youth with mental health challenges to succeed at our education facility and at life?”.

2. By consent of GHJF, the Respondent’s lawyers wrote to Eastern Health on 16 June 2023 to seek a medical report about GHJF’s medical condition when they were receiving treatment by Eastern Health CYMHS Brief Intervention Clinic (Clinic) in 2018. Dr HM, clinical psychologist, authored a letter dated 4 July 2023. Dr HM explains in her letter that in general their Clinic would provide intervention for clients for up to six sessions with a focus on one presenting concern and the Clinic’s function was not to undertake comprehensive mental health assessment or reach a formal psychiatric diagnosis. Dr HM states that she had not been the direct treating clinician (of GHJF) and that she had based her report on information contained in GHJF’s medical records at the Clinic.

3. The Respondent’s lawyer asked the Clinic whether GHJF was suffering from a medical condition between 5 March and 8 June 2018. Dr HM responded by stating as follows:

   The primary concern of [GHJF] was distressing intrusive thoughts related to hearing that a close family member had been sexually assaulted as a child. This was in the context of a past history of Anorexia Nervosa (some eating disorder symptoms were reported to be continuing). The diagnosis recorded was: “Problem related to alleged sexual abuse of a family member” (ICD-10 code Z61.5).

4. The Respondent’s lawyer asked the Clinic whether GHJF’s medical condition was a pre-existing condition. Dr HM responded that GHJF had reported that this was the case.

5. The Respondent’s lawyer asked the Clinic whether GHJF’s medical condition was a fluctuating condition, and if so, how often their condition would fluctuate and when those fluctuations would occur. Dr HM responded that GHJF’s intrusive thoughts were reported to have increased significantly in the weeks prior to being seen in the context of psychosocial stressors.

6. The Respondent’s lawyer asked the Clinic whether it had ever discussed the possibility of those fluctuations with GHJF and if so, whether advice was provided as how to manage the fluctuations and when such advice was provided. Dr HM responded by stating that GHJF’s symptomatology and management were discussed in the sessions with them at the Clinic and that:

   Advice was provided in relation to psychological strategies on how to manage the distress [GHJF] experienced as result of the intrusive thoughts. Psychoeducation and behavioural strategies were provided in relation to eating and meals, and linkage with a dietician was advised regarding the reported concerns relating to eating behaviours.

7. The Respondent’s lawyer asked the Clinic to indicate the date upon which GHJF’s medical circumstances made their full impact on GHJF. Dr HM stated that she was unable to comment based on the information in the medical report and also that she was unable to comment as to whether GHJF’s medical circumstances worsened after the date upon which they first made their full impact on GHJF, or whether the full effect of GHJF’s medical circumstances became apparent after that date.

8. The Respondent’s lawyer asked the Clinic to describe the impact of GHJF's medical circumstances on their ability to complete the requirements of a unit of study between 5 March and 8 June 2018. Dr HM states that GHJF reported in the first session that they were experiencing a number of significant life stressors and were negatively affected by ongoing intrusive thoughts of distressing content which were significantly impacting their ability to study.

9. Finally, the Respondent’s lawyer asked the Clinic whether GHJF's medical condition changed after 28 March 2018 to such an extent that they were unable to continue studying. Dr HM states that she was unable to make a comment in relation to this question.

   CONSIDERATION

   Should the Tribunal waive the requirement under s 104-35 in relation to the making of the RoD application within the Application Period?

10. As mentioned above, the first issue to be decided by the Tribunal in this proceeding, is whether, under s 104-25(1)(e)(ii) of the HES Act, it should waive the requirement under s 104-35 of the HES Act as referred to above, “on the ground that it would not be, or was not, possible for the application to be made before the end of that period”.

11. The Respondent highlights that GHJF had not applied for the re-crediting of the FEE-HELP assistance amounts in respect of the Three Units, until two-and-half years after the end of 12-month statutory time limit.[34] The Respondent contends that the Tribunal should not waive this requirement because “the Applicant ought to have been aware of the requirement to make an application within 12 months and they were able to take rational action during this period, for example, by engaging with their treating practitioners, employees of Deakin, and paid and unpaid employment during the 12-month period following”.[35] The Respondent contends that it had advised GHJF “on numerous occasions of [their] obligation” (to lodge the application within the 12 month Application Period).[36]

    [34] Respondent’s Statement of Facts, Issues and Contentions, paragraph [32].

    [35] Ibid, paragraph [36].

    [36] Ibid, paragraph [37].

12. Throughout the Respondent’s Statement of Facts, Issues and Contentions (SFIC), he seeks to rely upon various other decisions made by the Tribunal, differently constituted, in support of its contentions in this application. The outcomes in those decisions have not influenced the Tribunal in deciding the present application because each “merits review” application that comes before the Tribunal must be decided based upon its own individual set of circumstances which may vastly differ. The Tribunal is not bound by principles espoused by other members of the Tribunal when interpreting the HES Act or the relevant administration guidelines.[37] Instead, it must form its own view about how to interpret the relevant legislative framework and to apply those provisions to the individual facts in this application.

    [37] The Tribunal would be so bound if those principles were espoused in the ratio decidendi of a decision of the Federal Court of Australia or High Court of Australia.

13. The Tribunal notes that GHJF completed, signed, and submitted a proforma Deakin “Withdrawal Form” on 5 April 2018. The reason given by GHJF for the withdrawal was stated as, “[m]edical”. There is a set of six bullet-point paragraphs at the base of this proforma document headed “Withdrawal Guidelines”. Notably, in this text, Deakin does not state either the name of the relevant legislation which governs the consequences of the student withdrawing from a unit, being the HES Act, nor the name of the legislative instrument comprising the guidelines (at that time, the Administration Guidelines 2012), that Deakin seeks to summarise in some of the bullet-point paragraphs on this form.

14. In the first bullet-point paragraph, Deakin refers to the Deakin College Refund Policy and provides a link with a statement that the policy contains detailed information “on penalties and refund calculations”. In the next bullet-point paragraph on the form, Deakin sets out as follows:

    ·FEE-HELP assistance students must withdraw before the Deakin College census date, else the FEE-HELP debt will be incurred for that trimester. The census date for each trimester is the end of week four of that trimester.

15. Notably, Deakin does not mention in this section of the form that the student may make an application for the re-crediting of any FEE-HELP fees that may arise under the HES Act. Nor does Deakin specify the 12-month statutory time limit that applies to the student should they wish to pursue a review of any decision by Deakin not to re-credit the FEE-HELP assistance amounts resulting from a withdrawal made after the Census Date.

16. At the base of the form, the student is prompted to declare that they have “read and understood the above guidelines”. This does not extend to any acknowledgement by the student that they have read and understood the HES Act or the Administration Guidelines 2012 (as was in force at that time) because, as mentioned above, Deakin omitted to include any reference or link to them (or to provide information as to how the student might otherwise go about obtaining a copy of the operative HES Act or those guidelines).

17. The Tribunal accepts that the Withdrawal Form gave notice of the possibility that a student would incur a FEE-HELP debt if the withdrawal occurs after the Census Date. However, the Tribunal cannot be certain as to whether GHJF read this form before they signed it given the mental state they were reported to be in at the time. Even if they did read it, the Notice did not specify the exact Census Date on this form so it is understandable if GHJF, being in the deleterious state of mind that they were in according to their treating psychologists at the time, was not aware that they had withdrawn from the Three Units after the Census Date had passed, as this Census Date was not expressly brought to their attention by Deakin on the form. Rather, and accepting for a moment that GHJF read this Notice before they signed it, GHJF was left to perform for themself, the calculation of the deadline based on the description in the form as to the date which correlates with “the end of week four” of the trimester. Further, as mentioned above, GHJF was not advised by the information on the face of this form as to their rights under the HES Act to request a RoD in relation to any FEE-HELP debt that may have arisen as a consequence of the withdrawal.

18. GHJF has maintained in their evidence (as set out in GHJF’s Statement and GHJF’s SFIC) that they were unaware that they had incurred a debt relating to the Three Units until 2021 when they started earning income above the relevant threshold, at which time they were required to commence repaying the FEE-HELP debt. This is corroborated by the evidence of M as set out in M’s Statement. This is direct lay witness evidence. By contrast, the Respondent relies only upon inferential evidence in support of his assertion to the contrary.

19. Specifically, the Respondent states in his SFIC that there is evidence to the contrary to GHJF’s assertion that they were unaware of the FEE-HELP debt, as the Respondent contends that he is able to demonstrate that GHJF was advised, on numerous occasions, about this. The Tribunal will address each instance provided by the Respondent of GHJF having been so advised, as set out in paragraph [48] of the Respondent’s SFIC.

20. Firstly, in subparagraph [48(a)] of the Respondent’s SFIC, the Respondent states:

    On 31 August 2017, the Applicant signed the 'Acceptance Declaration' (T5). In bold capital letters, the declaration states 'PLEASE READ CAREFULLY'. By signing the application, which the Applicant did prior to enrolling in the relevant Units, the Applicant acknowledged that they had 'read, understood and accept all of the conditions detailed above'. Notably, of those conditions included:

    (i)'I understand that I must abide by all Deakin College policies and the Deakin University Student Code of Conduct my enrolment at Deakin College. I understand that these policies can be accessed on each organisation's website.

21. The Tribunal notes that this clause in the Acceptance Declaration provides a link to: Deakin College and Deakin University The Tribunal does not accept that it is reasonable to expect that a student, upon signing this Acceptance Declaration, will have read every Deakin student-facing policy of which there are many. This is simply not feasible or realistic. The Tribunal considers that the reason Deakin inserts a phrase like this in its proforma student Acceptance Declarations is to serve its own interests in legal proceedings such as the present application, in a manner which the Tribunal regards as being unfair or perhaps even, unconscionable conduct directed at its students. The Tribunal does not accept that Deakin would consider it likely that its students will have read all of its student-facing policies prior to signing that Acceptance Declaration and yet it mandates that its students must agree that they have done so before their enrolment can progress. The Tribunal considers that if there was something that Deakin wanted to ensure that its students needed to be aware of at the time of enrolment, it was incumbent upon Deakin to have set this out expressly in its proforma Acceptance Declaration and not by way of references to other secondary documentary resources.

22. The Tribunal’s views, as set out in the above paragraph, apply equally in relation to the next instance that the Respondent seeks to rely upon as support for his assertion that GHJF had been aware that they had incurred a debt because they had advised of their obligations, as set out in subparagraphs [48(b)], [48(c)] and [48(d)] of the Respondent’s SFIC, as follows:

    (b)'I have read and understand the Deakin College Conditions of Enrolment as well as the Refund Policy detailed in Section 5 and on the Deakin College websites'. The Deakin 'Refund Policy' (T3), which the Applicant declares that they have read and understood (T5) relevantly states that:

    (i) At [4.1] (T5, f20) 'Once an applicant accepts a place in a course offered by Deakin College and pays tuition fees, or submits a Request for FEE-HELP Assistance, a binding contract is created between the student and Deakin College'.

    (ii)      At [6.1] (T5, f21) 'Where a student is eligible for a refund, that refund will be calculated in accordance with section 8 of this policy'.

    (iii) At [6.2] (T5, f21) 'No refund will be paid to FEE-HELP assistance students. FEE-HELP assistance students must formally withdraw from Deakin College before the Deakin College census date, otherwise the FEE-HELP debt will be incurred for that trimester'.

    (iv) At [6.3] (T5, f21) 'For all students, a withdrawal must be made formally on the Withdrawal Form available at Deakin College Reception'.

    (c) The Applicant made a request for a FEE-HELP loan on 31 August 2017 (T4). The document states that: 'You MUST read the FEE-HELP information for 2017 booklet before completing this form'. In section E of the form, the Applicant declares that they had 'read the FEE-HELP information for 2017 booklet and you and are aware of your obligations under the loan scheme'. The Applicant also confirmed that they understood that:

    (i)        'it is your responsibility to be aware of your FEE-HELP balance…'

    (ii) 'your debt with the Government will remain if you withdraw or cancel your enrolment from your course after the census date but your debt may be removed by your provider in special circumstances'.

    (iii) 'you are able to cancel this request, in writing, at any time, with your provider, and it will no longer apply from that time. However, this must be done by the census date, otherwise you will have a debt to the Government that you are legally required to repay'.

    (d) The 'FEE-HELP information for 2017' is at T27. Relevantly, the information booklet (which the Applicant declares that [they] had read), states that:

    (i)'1.2 Be aware of your obligations!'. 'Find out your census date(s). Census dates are critical to getting a FEE-HELP loan to pay your tuition fees or withdrawing your enrolment without incurring a FEE-HELP debt. See section 4.3…' (T27, f147).

    (ii) 'You are responsible for keeping track of your FEE-HELP balance' (T27, f152).

    (iii) 'If you correctly withdraw from a unit by the census date, you will not have to pay the tuition fees or incur a debt for that unit. If you have already made an upfront payment of your tuition fees, you will receive a refund from your provider' (T27, f161).

    (iv) 'Fail or withdraw incorrectly and you will get a HELP debt. If you fail a unit, or withdraw from a unit after the census date, you will still have to pay the tuition fees for that unit, regardless of whether you attended any classes or will repeat the unit' (T27, f161).

    (v) 'You need to submit your application for special circumstances to your provider within 12 months of your withdrawal day' (T27, f161).

1. The Respondent also sought to rely upon a Commonwealth Assistance Notice (CAN) sent to GHJF on 24 April 2018 as evidence that they had been advised of their obligations (and therefore it should be inferred that they were aware of having incurred a debt). The Respondent contended as follows in subparagraphs [48](e)] and [48(f)] of his SFIC:

   (e) The Applicant was provided with a Commonwealth Assistance Notice (CAN) on 24 April 2018 (T8). The covering email states that: 'Compulsory repayments are calculated through your tax return when you begin earning above the income threshold…' and confirms the census date of 28 March 2018.

   (f) The CAN (T7) sets out the tuition fee amount for each of the Units and confirms that the Applicant has a total FEE-HELP debt for the Units of $11,189.06. =The CAN notice also identifies that the Applicant has until 8 May 2018 to request a correction to the CAN. The CAN also confirms the census date of 28 March 2018. Relevantly, the notice states that:

   It is your responsibility to check your FEE-HELP balance on the StudyAssist website at: To access this information, you must use your Commonwealth Higher Education Student Support Number (CHESSN) contained in this notice. It is important to remember that there may be a time lag of a few months between when you receive this notice and the data is validated by [the Department of Education, Employment and Workplace Relations] and uploaded to the website.

   Please ensure that you have sufficient FEE-HELP balance to cover the FEE-HELP amounts indicated in this notice. You are eligible for the amounts of FEE-HELP assistance contained in this notice only if you have sufficient FEE-HELP balance to cover those amounts. The information regarding Commonwealth assistance contained in this notice is correct only insofar as you have correctly advised this higher education provider of your entitlement to that assistance under the Higher Education Support Act 2003.

2. Firstly, the covering email referred to by the Respondent in subparagraph [48(e)] of his SFIC, was not in evidence before the Tribunal. Secondly, even if the Tribunal is to accept that this covering email was given to GHJF and it notified GHJF of the relevant Census Date, being 28 March 2023, this notice was provided to GHJF one month after the Census Date or just over three weeks after they had withdrawn from the Three Units. It is possible that GHJF did not open and read this correspondence. The medical and clinical evidence before the Tribunal shows that GHJF’s mental function was impaired at this time requiring them to seek out professional intervention by psychologists who described GHJF as having intrusive thoughts and was dealing with a number of life stressors arising from the changes taking place at that time, such as moving to live with their boyfriend and his parents and their need to find new employment as their previous employee had terminated their employment. The Tribunal acknowledges that the evidence of LS and specifically his opinion that, prior to and following the withdrawal from the Three Units, GHJF was unable to keep track of their paperwork due to “anxiety and executive dysfunction” which he described as “extreme” (see paragraph [50]) should be viewed with caution because LS was not treating GHJF at the relevant time. However, the Tribunal notes that rear projection of LS was consistent with the forward projection of JB (who had treated GHJF in 2017), as set out in paragraph [51] above, and on this basis, the Tribunal is satisfied that GHJF executive function was impaired at the time they withdrew and during the 12-month Application Period.

3. As for the CAN and the information contained in it, the Tribunal considers that a person would be left confused upon reading it as to whether the information contained on the CAN was, in fact, correct. The reader is instructed to use a password to access another portal to obtain further information and then the reader is cautioned that it may not be correct because there may be a time lag of a few months between when you receive the CAN and the data is validated by the then, Department of Education, Employment and Workplace Relations (DEEWR) and uploaded to the website. The Respondent has omitted from his SFIC two further statements which appear in the CAN referring to sub-s 169-10(2) and 169-10(4), notifying GHJF that they have the right to request correction of the information contained in the CAN until 8 May 2018, and then this same statement is repeated for a second time for reasons which are not clear. The Tribunal considers that if a reasonable person was to read this notice, it would be unclear to them whether any reliance can be placed on the accuracy of the information contained in the CAN, given the repeated warnings by the author that the information in the CAN might be incorrect.

4. The Tribunal does not consider it reasonable to infer from the fact that GHJF was sent the CAN on 24 April 2018, that GHJF was aware that they had a FEE-HELP debt arising in respect of the Three Units.

5. Further, the Respondent relies upon the emails sent to GHJF by a Deakin Student & Academic Services Officer on 5 and 6 April 2018, prompted by the submission by GHJF of the Withdrawal Notice to Deakin, as support for its assertion that GHJF was aware that they had incurred a FEE-HELP debt and had been informed about how to apply for RoD in respect of the Three Units.

6. The first email was sent on 5 April 2018 to GHJF attaching the proforma Withdrawal Form and the author from Deakin states:[38]

   As it is after the FEE HELP census date of 5pm on Wednesday 28/3, you will now incur a FEE HELP debt.

   [38] T-Document, T16/114.

7. The second email was sent on 6 April 2018[39] attaching a proforma Deakin “Application for Re-Crediting and Remission of FEE-HELP Debt” form,[40] and a publication by Deakin entitled “FEE-HELP Review Procedure” (Policy Document).[41] The Deakin Student & Academic Services Officer states as follows in the email dated 6 April 2018:

   Your withdrawal form has been processed but as it was received after the Census date of 28 March 2018, the units you were enrolled in will be added to your FEE Help Debt.

   Attached please find the application for Re-crediting and Remission of Fee Help Debt and the policy for this review. As you listed your reason for withdrawing as medical, you may wish to apply for re-crediting. I am not able to advise if your situation will be approved for re-crediting, but am sending you the documents for you to review and decide if you would like to apply.

   [39] T-Document, T17/116.

   [40] ST-Document, ST1.

   [41] Ibid, ST2.

8. This email does not expressly advise GHJF that a statutory time limit applies in relation to them making an application for the re-crediting of their FEE-HELP assistance amounts in respect of the Three Subjects, nor does it expressly advise GHJF of the date of any deadline for submission of such application, other than by attaching the Policy Document within which this information is embedded. The Policy Document includes a statement that such applications must be made within 12 months of either the date of withdrawal from the unit (or where the unit was failed but not withdrawn, within 12 months of the last day of the trimester in which the student was enrolled in the unit) and also a statement that “[a]pplications for study periods outside of this 12 month period may be considered if you can prove that the application could not have been made within the required time limit”. For GHJF to have been aware of the details of the application process and time frames, it was necessary for them to have accessed the Policy Document and for them to have searched through its contents to find this information.

9. The Respondent contends that the sending of this email and attached Policy Document to GHJF is at odds with GHJF's contention that they were not aware of the FEE-HELP debt until the 2021 “tax season”. Not necessarily. When viewed in the context of GHJF’s mental health issues at the time, it is possible that they did not open or read the contents of this email and/or the attached Policy Document. It is also possible that GHJF may have opened the email and/or Policy Document and looked at it but, given their mental health issues they were experiencing at that time, they were not able to take in and understand the information and did not register the significance of the information contained within the email and/or Policy Document, or understand the messages contained in the text of the email or the Policy Document.

10. There was no evidence of any person at Deakin having contacted GHJF by telephone to check if they had read the email and Policy Document, had understood the information in those documents and whether they required any further information or assistance to make an application for re-crediting of the FEE-HELP assistance amounts. It would seem that Deakin could not be sure that its messages were properly read and understood by the intended recipient. At this date, GHJF was at the height of experiencing significant mental health issues and had impaired executive functioning, including intrusive thoughts which had affected their concentration to the point where GHJF decided they would need to withdraw from the Three Units and seek out professional help. GHJF’s treating psychologist, LS, provided a rear projection that he would not expect that GHJF was at that time in a position to be able to keep up with paperwork (see paragraph [50]) and this was consistent with the forward projection provided by JB (see paragraph [51]).

11. On balance, the Tribunal prefers and accepts GHJF’s direct evidence, as corroborated by M’s direct evidence, that GHJF was unaware that they had incurred the FEE-HELP assistance debt until 2021 “tax season”, over the inferential evidence relied upon by the Respondent as referred to and addressed in paragraphs [70] to [84] inclusive above. The Tribunal finds that GHJF was not aware that they had the “FEE-HELP” debt until the “2021 tax season”.

12. The Respondent contends that:[42]

    To establish that it was not possible to lodge an application within the statutory timeframe requires clear evidence of a prolonged, continuous, and systemic effect on a person’s capacity to perform day-to-day activities within the 12-month application period. It would require the Applicant to provide probative and contemporaneous evidence of a medical condition, memory lapses or behavioural discrepancies, which would have inhibited them from performing a routine administrative action analogous to the types referred to in Williams.

    [42] Respondent’s SFIC, paragraph [47].

13. The reference to Williams in the above paragraph, is a decision by the Tribunal in Williams and Secretary, Department of Education and Training (2016) ALD 565. Little may be drawn from the outcome in this decision, because as mentioned above, each application before the Tribunal must be decided on its individual circumstances. The Tribunal is not bound by any principles laid out in a decision by another member of this Tribunal for the reasons explained above at paragraph [64].

14. The Tribunal does not accept the further qualification that the Respondent seeks to place on the interpretation and application of s 104-25(1)(e) of the HES Act, as set out in paragraph [86] above. If Parliament had intended for those additional criteria to apply, it would have enacted them into the wording of s 104-25(1)(e). Instead, the Tribunal considers that it must remain firmly focussed on making an assessment as to whether it was possible for the application to be made within the Application Period, as mandated by the operative legislative provisions. The factors to be taken into consideration when making this assessment may vary depending on the individual circumstances of each case. For instance, if a case involves a person with physical impairments, the matters to be assessed are likely to vary significantly from a case where the person has impairments to their mental function. Such a case would call for the decision-maker to have an understanding and awareness about the impacts of psychosocial conditions, as they may have in relation to the visible impacts of physical conditions. Each case may also differ depending upon the support structures (family and friends) in place around the student or any limitations on those support structures at the relevant time.

15. To decide this issue, s 104-25(1)(e) of the HES Act requires the Tribunal to be satisfied that it would not be, or was not, possible for the application to be made before the end of the Application Period. The Tribunal considers this to be so in GHJF’s circumstances, for the reason that the Tribunal has found that GHJF was unaware that they had incurred a FEE-HELP debt as a result of their withdrawal from the Three Units, from which to seek a RoD. It is not possible for GHJF to have made an application to re-credit the FEE-HELP debt if they did not know they had one (until 2021).

16. The Tribunal finds that GHJF’s mental state was extremely poor at this time as reflected by the fact that they had sought out and was receiving professional behavioural intervention from CYMHS through its Brief Intervention Clinic involving sessions with a senior clinical psychologist, HM, and/or provisional psychologist, NW. Those clinicians were left with an impression (as detailed in paragraphs [38] to [47] above) that the primary and distressing symptoms GHJF was suffering from at that time were “intrusive thoughts” and “mental checking” of these thoughts. GHJF was subsequently diagnosed on 18 January 2020 by a psychiatrist, Dr AD, has having the conditions of Adult ADHD (mild), OCD, GAD, and anorexia nervosa (in remission), providing an important further context and explanation for the occurrence of these symptom in GHJF’s case and the significant impact that the Tribunal is satisfied they had on GHJF.[43]

    [43] Exhibit 8: (Lodged by GHJF on 26 May 2023).

17. NW and HM referred to GHJF undergoing numerous life stressors as they transitioned in April 2018 to live with their boyfriend and his parents, withdrawing from their studies and working in a new job. So, even if the Tribunal had found that GHJF was aware at or shortly after the time of withdrawal that they had incurred a FEE-HELP debt in respect of the Three Units, the Tribunal considers that GHJF did not have capacity due to mental health issues at that time to pursue an application for the re-crediting of that debt within the Application Period. There was no evidence of GHJF having received a telephone from anyone at Deakin to explain to them that they had incurred a debt and what they could do to seek a re-credit of it, or to find out more about the “[m]edical” condition they had put Deakin on notice about in their Withdrawal Form.

18. The evidence does not reveal that there was an offer of assistance by Deakin to assist GHJF to complete an application form given the circumstances they were in, to send them a copy of or link to the HES Act, or the HES (Administration) Guidelines or to explain to them, over the telephone the relevant parts of Deakin’s Policy Document. Specifically, Deakin could have and should have expressly informed GHJF that they had a right to make an application to have the FEE-HELP assistance amounts re-credited, how they were to go about this (that is, they were required to make an application in writing) and Deakin should have provided them with a specific date by which they were to do so. This is the basic level of support the Tribunal considers the higher education provider should have provided directly and a personal way to a student like GHJF in light of its role and responsibility as the effective administrator of the HES Act and in light of the higher education provider’s knowledge that GHJF was experiencing a medical issue, being the stated reason on the Withdrawal Notice.

19. For the reason set out in paragraph [89], the Tribunal concludes that under s 104-25(1)(e)(ii) of the HES Act, the requirement under s 104-35 in relation to the making of the RoD application within the Application Period in GHJR’s case, is waived because it was not possible for GHJF to have made the application for re-crediting of the “FEE-HELP” debt within the Application Period if they did not know about it.

    Was the requirement under s 104-25(1)(c) met in that “special circumstances” applied within the meaning of s 104-30?

20. The Tribunal will proceed now to a consideration as to whether it is satisfied that “special circumstances” applied to GHJF, within the meaning of s 104-30 of the HES Act, in respect of the withdrawal of the Three Units by GHJF after the Census Date. As mentioned above, if the answer, is yes, the Tribunal will set aside the Decision Under Review as it is satisfied that all other requirements under s 104-25 have been met by GHJF in respect of their withdrawal from the Three Units. If the answer is no, the Tribunal will affirm the Decision Under Review.

21. By operation of s 104-30 of the HES Act, the Tribunal may only find that “special circumstances” applied to GHJF “if and only if” it is satisfied that circumstances apply to them that:

    (a)were beyond GHJF’s control;

    (b)did not make their full impact on GHJF until on or after the Census Date; and

    (c)made it “impracticable” for GHJF to complete the requirements for the Three Units in the period during which GHJF undertook, or was to undertake those Three Units, being the first trimester of 2018 (that is, March to 8 June 2018).

    Were the circumstances beyond GHJF’s control?

22. Based on s 12 of the HES (Administration) Guidelines, the Tribunal will consider the following when deciding whether the circumstances of GHJF withdrawing from the Three Units after the Census Date were beyond GHJF’s control:

    (a)whether a situation occurred which the higher education provider (or the Tribunal upon review)  reasonably considers is not due to GHJF’s action or inaction, either direct or indirect, and for which GHJF is not responsible; and

    (b)the situation is “unusual”, “uncommon”, or “abnormal”.

23. The evidence demonstrates that GHJF was experiencing a significant episode of psychosocial symptomatology, increasing in intensity when they started the Course in March 2018. The symptoms comprised intrusive thoughts which were so bad that they sought out immediate clinical intervention through a mental health service and received treatment by a senior clinical psychologist and provisional psychologist. GHJF commenced their study on 5 March 2018 and by 5 April 2018, after the Easter holiday period, GHJF submitted their withdrawal. At this time, GHJF had underlying mental health conditions, albeit their anorexia nervosa was reportedly in remission. The evidence revealed that GHJF had been triggered by thoughts about a sexual assault that had taken place in respect of a close family member. GHJF also had other changes taking place at this time, such as their parents moving away and plans for GHJF to move in with their boyfriend and his parents.

24. GHJF’s situation at that time was far from usual, common, or normal. At the time of withdrawing from the Three Units, they were still a teenager (being 19 at the time) and had not long entered remission from an extremely potentially debilitating and life-threatening psychiatric condition, being anorexia nervosa. The triggering of GHJF must be viewed in that context, being that GHJF was at that time (and no doubt remains) a vulnerable person. There is evidence that their symptoms of intrusive thoughts had increased. The Tribunal is satisfied that GHJF reached a point where they decided to withdraw from the Three Units realising, they would not be able to cope given the mental state they were in.

25. The Tribunal is satisfied that it is reasonable to consider that this situation is not due to GHJF’s action or inaction, either direct or indirect, and for which they are not responsible. Instead, GHJF should be commended for their bravery in endeavouring to embark upon the Course in light of their not-too-distant history of needing to grapple with the devastating impacts of a condition like anorexia nervosa. Unfortunately, they were triggered as mentioned above, and experienced increasing symptoms of intrusive thoughts affecting their mental health functioning causing them to withdraw. The Tribunal does not consider this to be due to the actions or inactions, directly or indirectly, of GHJF. It was due to the unfortunate episode they had experienced and the distress they were experiencing as a result, which had caused them, at the time, to make the sensible decision that they did to withdraw from the Three Units.

1. Accordingly, the Tribunal finds that s 12 of the HES (Administration) Guidelines applied to GHJF in respect of the withdrawal of the Three Units in that GHJF’s circumstance were beyond their control.

   Whether the circumstances did not make their full impact on GHJF until on or after the Census Date?

2. Based on s 13 of the HES (Administration) Guidelines, when deciding whether the circumstances did not make their full impact on GHJF until on or after the Census Date, the Tribunal will consider whether GHJF’s circumstances occurred:

   (a)before the Census Date, but worsened after that day;

   (b)before the Census Date, but the full effect or magnitude did not become apparent until on or after that day; or 

   (c)on or after the Census Date.

3. The evidence reveals that GHJF’s circumstances had occurred before the Census Date. GHJF’s own evidence was that they “struggled from the beginning” and were seeking out tutoring and support from Deakin and their family members (see paragraph [31]). This is also evident from the date of GHJF’s first session with psychologists at CYMHS through the Brief Intervention Program on 27 March 2018, from which it can be reasonably inferred that they were experiencing mental health issues. This preceded the date that GHJF withdrew from the Three Units, that is, 5 April 2018. The CYMHS Summary referred to the changes that GHJF was experiencing including moving in with their boyfriend and his parents, which did not take place until April 2018. As set out in paragraph [45], the treating psychologists referred to GHJF having deferred (that is, withdrawn from the Three Units) due to concerns that they were not achieving as well as they would like, which the Tribunal takes to be a reflection on the degree to which they had engaged in their studies as there had been no assessments at that time as noted by the psychologists, and due to the stress of the changes.

4. The Tribunal notes that GHJF proceeded to have another three sessions with the psychologists through the Clinic after the date of withdrawal from the Three Units and a further telephone call with them on 28 June 2028 being the date they were discharged from this Clinic. The Tribunal infers from this treatment history that while GHJF’s mental health episode or relapse commenced when they began their studies for the Course, that their symptoms worsened and the full effect and magnitude of GHJF’s circumstances were not reached until shortly after the Census Date. This is consistent with the history of GHJF’s personal transitions taking place being that they did not move out to live with their boyfriend and his parents, which the psychologists described as a further stressor on GHJF, until after the Census Date.

5. Accordingly, the Tribunal finds that s 13 of the HES (Administration) Guidelines applied to GHJF in respect of the withdrawal of the Three Units and that GHJF’s circumstances did not make their full impact on GHJF until on or after the Census Date.

   Did the circumstances make it impracticable for GHJF to complete the requirements of the Three Units during the period that they undertook, or was to undertake, the Three Units?

6. Based on s 14 of the HES (Administration) Guidelines, when deciding whether the circumstances of GHJF made it impracticable for them to complete the requirements of the Three Units during the period they were to undertake those units, the Tribunal is to consider the following kind of circumstances (of relevance to this application):

   (a)medical circumstances - for example, where a person’s medical condition has changed to such an extent that they are 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; or

   (c)employment related circumstances - for example, where a person’s employment status or arrangements have changed so that the person is unable to continue their studies, and this change is beyond the person’s control.

7. Of primary relevance to this application is the deterioration of GHJF’s mental health when they commenced their studies at Deakin. The evidence revealed that GHJF had been experiencing intrusive thoughts that were distressing and impacting on their life and concentration, and that they had overwhelming fatigue, low mood and amotivation (see paragraph [38]). Correspondence with Deakin on 25 March 2018 shows that GHJF had explained their difficulty and had referred to having trouble with their concentration and that they were unable to attend a lecture on 26 March 2018 as they would be attending a medical appointment (see paragraph [33]). As mentioned, GHJF sought treatment by the CYMHS through the Brief Intervention Clinic which commenced with a session on 27 March 2018 and continued through to 28 June 2018, at which time they were discharged. GHJF’s face-to-face sessions with treating psychologists ended on 14 May 2018.

8. In light of GHJF’s medical history of having a serious psychosocial disorder (now in remission) and the evidence about their relapse in March 2018, as evidenced by the clinical notes from CYMHS as referred to in these Reasons for Decision, the Tribunal is satisfied that GHJF’s medical condition had changed to such an extent that they were unable to continue studying the Three Units in the first trimester of 2018. This is sufficient for the Tribunal to be satisfied that s 14(1)(a) of the HES (Administration) Guidelines applied to GHJF in respect of the Three Units.

9. A further (separate) basis upon which the Tribunal is satisfied that s 14(1)(a) applies to GHJF is that they were undergoing changes in their personal and employment-related circumstances as a result of their parents moving away (with the evidence indicating that they had been a central support base for GHJF in relation to their underlying mental health disorder) and adjusting to moving in to live with their boyfriend and his parents, as well as needing to find further employment because their previous employer was not prepared to allow them to work part-time while they were studying. The primary basis, however, is the change in GHJF’s medical condition which, by itself, rendered them incapable of undertaking the Three Units in the first trimester of 2018 had they not withdrawn from those units.

10. The Tribunal finds that s 14 of the HES (Administration) Guidelines applied to GHJF in respect of the Three Units and that GHJF’s circumstances made it “impracticable” for them to complete the requirements for the Three Units in the period during which they undertook, or was to undertake those units, being the first trimester of 2018 (that is, March to 8 June 2018).

CONCLUSION

1. Based on these findings, the Tribunal is satisfied under s 104-30 of the HES Act that circumstances applied to GHJF when they withdrew from the Three Units, that:

   (a)were beyond GHJF’s control;

   (b)did not make their full impact on GHJF until on or after the Census Date; and

   (c)made it “impracticable” for GHJF to complete the requirements for the Three Units in the period during which GHJF undertook, or was to undertake those units, being the first trimester of 2018 (that is, 5 March to 8 June 2018).

2. Accordingly, the Tribunal concludes that the “special circumstances” requirement under s 104-25(1)(c) of the HES Act is met in respect of GHJF’s withdrawal from the Three Units.

3. There was no dispute between the parties that GHJF had been enrolled in the Three Units at the relevant time or that they were units not provided by Open Universities Australia, so the Tribunal concludes that both of the requirements under s 104-25(1)(a) and s 104-25(1)(aa), respectively, are met.

4. There was also no dispute between the parties that GHJF had not completed the requirements for the unit during the period during which they undertook or were to undertake the unit, GHJF withdrew from the units on 5 April 2018 being a matter that was not contested by the Respondent. The Tribunal concludes that GHJF meets the requirement under s 104-25(1)(b) of the HES Act.

5. The Tribunal concludes that GHJF met the requirement under s 104-25(1)(d) of the HES Act as they made an application in writing for re-crediting of the HELP balance in November 2021.[44]  

   [44] T-Documents, T20 and Respondent’s SFIC, paragraph [6].

6. As set out above in paragraphs [62] to [93], the Tribunal waives the requirement under s 104-30, so it follows that the Tribunal concludes that GHJF meets the requirement under s 104-25(1)(e) of the HES Act.

7. Accordingly, the Tribunal sets aside the Decision Under Review and, in substitution, decides, by operation of s 104-25 of the HES Act, that Deakin, being the higher education provider, must, on the Secretary’s behalf, re-credit GHJF’s HELP balance with an amount equal to the amounts of FEE-HELP assistance that GHJF received for the Three Units of study.

I certify that the preceding 116 paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

.................................[sgd].......................................

Associate

Dated: 13 September 2023

Date of hearing:

Date of last submission:

On the papers

16 August 2023

Applicant:

Self-represented

Respondent’s Solicitor:

Ms Kristina Mihalic & Ms Sarah Hardie  

HWL Ebsworth Lawyers