Lehtonen and Secretary, Department of Education and Training - [2019] AATA 5167

Lehtonen and Secretary, Department of Education and Training [2019] AATA 5167 (29 November 2019)
Division:GENERAL DIVISION
File Number: 2017/7215
Re:John Lehtonen
APPLICANT

AndSecretary, Department of Education and Training
RESPONDENT

DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date:29 November 2019
Place:Melbourne

The Tribunal affirms the decision under review.
.......[sgd].............................................................
Senior Member R. Pintos-Lopez
Catchwords
EDUCATION – VET FEE-HELP balance – re-crediting of VET FEE-HELP – special circumstances of severe atopic dermatitis and anxiety and/or depression symptoms – insufficient evidence of full impact of symptoms occurring on or after census date – application lodged after application period – decision under review affirmed
Cases
Brown and Secretary, Department of Education and Training [2015] AATA 518
Nash and Secretary, Department of Education and Training [2016] AATA 991
PJPF and Secretary, Department of Education and Training [2016] AATA 833
Tralongo and Secretary, Department of Education [2016] AATA 393
Legislation
Higher Education Support Act 2003 (Cth)
Secondary Materials
VET Administrative Information for Providers September 2015
REASONS FOR DECISION
Senior Member R. Pintos-Lopez
29 November 2019

The Applicant seeks review of a decision made on 27 November 2017 by the vocational education and training (VET) provider, Management Consultancy International Institute (MCI Institute), pursuant to clause 46(2) of Schedule 1A of the Higher Education Support Act 2003 (Cth) (the Act) affirming an earlier decision of MCI Institute to refuse the re-crediting of a VET FEE-HELP amount he had incurred in relation to a unit of study commenced with MCI Institute.
For the reasons that follow the reviewable decision is affirmed.
BACKGROUND
On 19 August 2017, the Applicant applied to MCI Institute for the re-crediting of the VET FEE-HELP amount he had incurred in relation to a unit of study as part of a Diploma of Accounting in Semester 1 of 2015.
On 23 October 2017, MCI Institute refused the Applicant’s application.
On 24 October 2017, the Applicant applied for reconsideration of MCI Institute’s decision.
On 27 November 2017, MCI Institute affirmed its decision.
On 30 November 2017, the Applicant filed an application for review with the Tribunal.
RELEVANT LAW
Clause 43 of Schedule 1A of the Act provides that a student will be entitled to VET FEE-HELP assistance for VET units of study provided they meet certain requirements.
Clause 55 of Schedule 1A of the Act provides:
If a student is entitled to an amount of VET FEE-HELP assistance for a VET unit of study with a VET provider, the Commonwealth must:
(a) as a benefit to the student, lend to the student the amount of VET FEE-HELP assistance; and
(b) pay the amount lent to the provider in discharge of the student's liability to pay his or her VET tuition fee for the unit.
The VET FEE-HELP scheme is described succinctly in Nash and Secretary, Department of Education and Training [2016] AATA 991, which states:
Schedule 1A of the Higher Education Support Act 2003 (Cth) (the HES Act), establishes a scheme whereby students may receive VET FEE-HELP assistance when they undertake study for accredited vocational education and training (VET) courses.
It is not necessary to set out the VET FEE-HELP scheme in great detail. It is sufficient to write that when students obtain VET FEE-HELP assistance, the federal Government loans students all or a portion of their tuition fees. However, this amount of money is paid directly to the education provider. Put another way, the Government loans TAFE students money comprising the whole or a portion of their tuition fees which are paid to their TAFE providers. Of course, the students are obliged to repay these loans to the Government when they are employed and when their income is above the designated income level.[1]
[1] [7] – [8].
A student can apply to a VET provider for the re-crediting of their VET FEE-HELP balance in respect of a unit of study pursuant to clause 46 of Schedule 1A of the Act.
Clause 46(2) provides that a VET provider must re-credit a person’s FEE-HELP balance in relation to a VET unit of study if:
(a) the person has been enrolled in the unit with the provider; 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 clause 48); and
(d) the person applies in writing to the provider for re-crediting of the FEE-HELP balance; and
(e) either:
(i) the application is made before the end of the application period under clause 49; 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.
(Emphasis added.)
Clause 48 of Schedule 1A of the Act provides that:
For the purposes of paragraph 46(2)(c), special circumstances apply to the person if and only if the VET 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 VET 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.
(Emphasis added.)
Clause 49 of Schedule 1A of the Act provides that:
(1) If:
(a) the person applying under paragraph 46(2)(d) for the re-crediting of the person's FEE-HELP balance in relation to a VET unit of study has withdrawn his or her enrolment in the unit; and
(b) the VET 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.
(2) If subclause (1) does 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.
The Department of Education and Training has published a policy guidance document entitled “VET Administrative Information for Providers September 2015” (the VET AIP).[2]
[2] The Respondent submits that the VET AIP is government policy that should be applied unless there are compelling reasons not to do so: citing Nash and Secretary, Department of Education and Training [2016] AATA 991, at [33] - [34], in turn citing Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 645. Further, the Respondent states that the application of policy would be in the interests of effective administration and consistency of decision-making.
Chapter 10 of the VET AIP provides:
Special circumstances do not include, for example:
·a lack of knowledge or understanding of requirements for VET FEE-HELP; or
·a person’s incapacity to repay a HELP debt, as repayments are income contingent and the person may apply for a deferral of a compulsory repayment in certain circumstances
[HESA section 154-45].
Chapter 10 of the VET AIP provides in relation clause 48(a) of Schedule 1A of the Act that the circumstances be beyond the person's control:
Circumstances could be considered beyond a person’s control if a situation occurs that a reasonable person would consider is not due to the person's action or inaction, either direct or indirect, and for which the person is not responsible. This situation would generally be expected to be unusual, uncommon or abnormal.
For example, a lack of knowledge of how VET FEE-HELP works or the requirements regarding census dates would not be considered beyond a person's control.
In relation to clause 48(b) of Schedule 1A of the Act, that the circumstances do not make their full impact on the person until on or after the census date, the VET AIP provides:
Circumstances could be considered not to make their full impact on the person until on or after the census date for the VET unit of study if the person's circumstances occurred:
·before the census date, but worsen after that day;
·before the census date, but the full effect or magnitude did not become apparent until after that day; or
·on or after the census date.
Students do not need to demonstrate they were unable to withdraw from the VET unit of study prior to the census date.
Further, the VET AIP provides:
A circumstance that first occurred before the census date may satisfy the special circumstances requirement where it worsens after that day or the full effect or magnitude does not become apparent until after that day.
For example, a person may have an illness or other underlying, pre-existing condition or incapacity prior to the census date for a VET unit of study, but that condition may worsen, or that person may suffer from an aggravation, deterioration or episode, after the census date.
Alternatively, the full implications of a person’s condition may not have been apparent until after the census date. This may be because recovery does not go to plan, or the degree of disability or incapacity for study are not fully realised until after the census date.
The VET provider must consider whether the person’s circumstances changed on or after the census date and when the full effect or magnitude of the circumstances became apparent, taking into account any additional circumstances, including continuation of a pre-existing condition, that may have affected the person on or after the census date.
Finally, Chapter 10 of the VET AIP provides in relation clause 48(c) of Schedule 1A of the Act in relation to the circumstances that make it impracticable for the person to complete the requirements for the unit:
The term impracticable is defined as ‘not practicable, that which cannot be put into practice with the available means. The VET provider should keep this definition in mind when deciding whether a student’s circumstances made it impracticable for them to complete a VET unit of study.
Circumstances that make it impracticable for the person to complete the requirements for their VET unit of study may include:
·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;
·family/personal circumstances, for example death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies;
·employment related circumstances, for example where a person’s employment status or arrangements have changed so the person is unable to continue their studies, and this change is beyond the person’s control; or
·course related circumstances, for example, where the VET provider has changed the VET unit of study it had offered and the person is disadvantaged by either not being able to complete the VET unit of study, or not being given credit towards other VET units of study or courses.
Consideration should also be given to whether at the time the person’s special circumstances emerged it was already not practicable for the student to meet the requirements of the VET unit of study.
A person is unable to complete the requirements for a VET unit of study, for example, if the person is unable to:
·undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements to meet their compulsory course requirements; or
·complete the required assessable work to the required standard; or
·sit the required examinations and obtain a required mark; or
·complete any other course requirements because of their inability to meet the above.
EVIDENCE
On 3 August 2015, the Applicant submitted a form entitled “Request for VET FEE-HELP” in relation to the VET course of study Diploma of Accounting, which stated:
I have read the VET FEE-HELP information booklet and I am aware of my obligations if I receive VET FEE-HELP assistance: TICKED
I understand, over my lifetime, the amount of VET FEE-HELP assistance (and FEE-HELP assistance) that I access must not exceed the FEE-HELP limit: TICKED
I understand that it is my responsibility to be aware of my FEE-HELP balance and to advise my provider/s (and FEE-HELP providers If applicable) if I am approaching the FEE-HELP limit and may not have enough FEE-HELP balance to cover my tuition fees. In this situation, I will advise each relevant provider of how much VET FEE-HELP (or FEE HELP) assistance I wish to access for my units of study: TICKED
The Applicant stated on the request form that he was a part-time employee and his highest level of schooling was Year 10 or equivalent. He stated his study reason as “I want extra skills for my job.”
On 9 September 2015 the Applicant submitted his first assessment task, which on 15 September 2015 was graded as “Competent.”
On 28 September 2015, a Commonwealth Assistance Notice was issued to the Applicant by MCI Institute setting out, among other things, the unit of study named as S1ANACC15 Semester 1, census date being 14 September 2015, the loan fee of $1,600 and HELP Debt of $9,600.
The evidence before the Tribunal includes documents containing communications between the Applicant and MCI Institute and their dates.[3] These include a note of 17 October 2015, which stated that MCI Institute had contacted the Applicant to ask how the Applicant was progressing with the course to which the Applicant responded: “Thanks mate all good.”
[3] The communications are contained in documents before the Tribunal which provide the text and the dates of those communications. The Respondent’s Statement of Facts, Issues and Contentions dated 25 June 2018, at [6.4] and [6.6], assists in the process of reconciliation where necessary. Those communications and dates were not in issue in the application.
An MCI Institute file note records that on 7 November 2015 during a telephone call the Applicant stated that, in relation to the course, he “hadn't had much of a chance this week due to work but had no problems or questions.”
A further file note of a telephone call on 3 December 2015, notes that the Applicant “said all was going well. NO issues to report.”
The MCI Institute notes record a series of unsuccessful attempts by MCI Institute to contact the Applicant concerning his course participation in December 2015 and January 2016.
MCI Institute records show further communications with the Applicant including a message from the Applicant to MCI Institute from on or about 2 March 2016 that stated:
Thanks heaps for the feedback Shane. You guys exited me out of the course. So going to have a chat to the tax office and also see what I can do legally. Not paying 9K for a course I'm not doing.
The reply on that same day stated:
You have not withdrawn from the course yet. We cannot do that to you unless you ask to be withdrawn. What's happened is that you have only been suspended from the course. This means that your access to the portal has been paused but if you elected to return to the course your access would be fully reinstated.
If you wanted to get your money's worth you could try coming back to the course and see if you enjoyed it and complete the first semester. This is never a bad idea as you never know the sort of opportunities a course like this could open up for you.
If you wanted to withdraw from the course completely, let me know and I can send you a link to an online withdrawal form for you to complete, If you decide to withdraw, there could be a possibility of the VET FEE help loan being removed, but this would require you to demonstrate special circumstances as to why you weren't able to complete the diploma. This would also need to be approved by MCI as well.
Please have a think about which you would like to do and let me know which one suits you best. I'll be more than happy to supply you with what you need I once you have decided what you would like to do about the diploma.
On or about 3 March 2016, the Applicant replied:
Thanks again for getting back to me, accounting isn't for me so when I was classed as inactive it was perfect. I honestly thought you are only charged if you complete the course. So if you can send me the withdrawal process that would be great much appreciated Shane.
On 20 June 2016, the Applicant completed a Course Withdrawal Form stating that he wished to withdraw from the Diploma of Accounting. In answer to why he wished to withdraw and why this course was not what he expected, he wrote that the “course is not what I expected… I did not understand what I was signing up to.”
On 23 June 2016, MCI Institute notified the Applicant that it had approved his withdrawal from the Diploma of Accounting.
On 14 August 2017, Dr Ajay Sachdev, the Applicant’s General Practitioner, prepared a medical certificate certifying that the Applicant had attended his practice on that day and stated further:
He has a long h/o atopic ecze and anxiety symptoms.
He did have a flare up of the symptoms in 2015 and requaired [sp.] referral to a counsellor for suppeort [sp.] & counselling.
On 19 August 2017, the Applicant applied to MCI Institute seeking the re-credit of his VET FEE-HELP balance under clause 46 of Schedule 1A of the Act for the online VET course entitled “Diploma of Accounting FNS50215” and in relation to the unit entitled “S1ANACC15 Semester 1 2015.”
On 19 August 2017, a Special Circumstances Application was prepared which stated that the application reason or category was serious illness or psychological condition. The form stated in response to how the Applicant’s circumstances changed after census:
re occurrence of severe skin condition and depression.
In response to the question as to how the Applicant’s circumstances prevented him from completing his study:
Anxiety and daily UV light treatment.
On 23 October 2017, MCI Institute wrote to the Applicant declining his application for a re-credit stating that there was insufficient evidence in support of his special circumstances.
On 24 October 2017, the Applicant’s mother, on his behalf, wrote to the chief operating officer at MCI Institute seeking a review of the decision not to re-credit the VET FEE-HELP balance. The letter referred to Dr Sachdev’s medical certificate of 14 August 2017 and stated further:
I would like to add that his skin condition was severe and required UV light treatment three times a week. Dr Sachdev referred John to the Primary Mental Health Clinic in Geelong for counselling and support for his anxiety symptoms.
On 8 November 2017, an MCI Institute Review Officer rejected the Applicant’s special circumstances application on the basis that the Applicant’s letter of evidence was insufficient.
On 27 November 2017, MCI Institute wrote to the Applicant’s mother in response to the request to review the earlier decision to not allow a re-credit of the Applicant’s FEE-HELP debt application due to “special circumstances”. MCI Institute stated that there was insufficient evidence to meet the special circumstances criteria as defined by the VET Guidelines, and that the timeframe for lodging the application was within 12 months of the withdrawal application.
On 30 November 2017, the Applicant applied to the Administrative Appeals Tribunal for review of the decision of 27 November 2017. In his reasons for application, the Applicant stated that MCI Institute had made unsolicited contact with him in August 2015, at which time, he was being treated for a mental illness and severe contact dermatitis. The Applicant claimed he was signed up to complete a diploma of accounting in circumstances where his highest level of education was completion of year 10 and his past work experience had been as a labourer.

The application stated further that the Applicant was enrolled on 18 August 2015 and the census date, being 27 days later, was 14 September 2015. The Applicant had not completed any units of the course.
On 12 April 2018, Dr Sachdev provided a letter stating that the Applicant:
has had a h/o chronic severe anxiety which flared up in 2015 and required referral to the local psychiatric service. He was seen by the psychiatrist in June 2015 and had been recommenced on Mirtazapine on 08.08.2015 as recommended by the psychiatrist. He also has a history of severe atopic dermatitis for which he had been referred to and treated by a dermatologist in March 2015.
On 5 December 2017, Dr Raquel Ruiz, a dermatologist, provided a letter concerning the Applicant’s skin condition. Dr Ruiz stated that the Applicant:
was initially seen here in 2012 and was subsequently seen in 2015 for the same diagnosis, severe atopic eczema. This is also called atopic dermatitis. The condition involved his trunk, limbs and face. He had a biopsy to clarify the diagnosis and to rule out contact dermatitis or cutaneous lupus. The biopsy result came back showing no clinical features of cutaneous lupus or contact dermatitis.
APPLICATION
A decision refusing to re-credit a person’s FEE-HELP balance under clause 46(2) of Schedule 1A of the Act is a reviewable VET decision under item 1 of clause 91. The decision maker, where the decision is not made by the Secretary, is the VET provider. Accordingly, MCI Institute’s decision of 27 November 2017, affirming its earlier decision to refuse the re-crediting of the VET FEE-HELP amount that the Applicant had incurred, is a reviewable VET decision.
The Applicant made an application to the Tribunal under clause 97 of Schedule 1A of the Act for review of that reviewable VET decision.
The Respondent submits that the Applicant failed to meet the requirements of the Act that the Applicant:
(a) make his application for re-credit of his FEE-HELP balance in relation to the Unit within 12 months of receiving notice that he had withdrawn from the Diploma (that is, by 23 June 2017); or
(b) obtain a waiver from that requirement, ‘on the ground that it would not be, or was not, possible for the application to be made before the end of that period’; and
… is a person to whom ‘special circumstances’ apply under paragraph 46(2)(c) of Schedule 1A to the Act, having regard to the conditions set out in clause 48 of Schedule 1A to the Act.[4]
[4] Respondent’s Statement of Facts, Issues and Contentions at [8.1].
The Applicant submits in his Statement of Facts, Issues and Contentions, dated 30 April 2018, that:
On or about the 3^rd of August 2015 the selling agent/marketer of MCI Institute RO 91088 made unsolicited contact to the applicant. Unemployed, in the depths of a depressive illness he was mentally unfit to consent to a hurried unsolicited consumer agreement by phone.
…
The applicant will contend that it was not possible to apply for a re-credit of vet fee help debt of $9600 before August 2017 because he did not know he had a tax debt until completing his tax return for 2016/2017.
Special Circumstances
During the second half of 2015 the applicant suffered poor mental and physical health, as per medical certificates attached. With the recommendation of his psychiatrist the learner/John commenced treatment for depression with Mirtazapine on the 8^th Aug 2015. John's mental illness was beyond his control, made its full impact on and after 14/9/2015. His condition was such that it made it impracticable to complete the requirements of the unit.
The Applicant must show that his circumstances satisfy the requirements of clause 46(2) of Schedule 1A of the Act, in particular, subclauses (c) and (e). That is, he must establish by evidence that there were “special circumstances” as defined and that his application for re-crediting was made within a prescribed period of time or that he obtained a waiver from that requirement.
Special Circumstances
Clause 46(2)(c) of Schedule 1A of the Act concerns the requirement that the provider be satisfied that “special circumstances” apply to the person. Clause 48 provides further specificity by stating that “special circumstances” apply “if and only if” the VET provider is satisfied that circumstances apply to the person that:
(a)are beyond the person's control;[5] and
(b)do not make their full impact on the person until on or after the census date for the VET 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.
[5] In Tralongo and Secretary, Department of Education [2016] AATA 393, the Applicant suffered from a chronic medical condition, which became exacerbated under stressful conditions. The Applicant enrolled in a number of courses, and later withdrew from those courses after the census date when her condition was exacerbated. In applying the special circumstances test under s 36-20(1)(d) of the Act, the Tribunal stated that the Applicant did not meet the special circumstances test as “the failure to withdraw by the census date was not beyond her control and... her situation was not unusual or uncommon in the circumstances of the disease having been first diagnosed in March 2008 (prior to her enrolling in the course).” See also In PJPF and Secretary, Department of Education and Training [2016] AATA 833, the Tribunal determined that an applicant diagnosed with a mental health condition prior to enrolling in a course did not to meet the special circumstances test. The Tribunal stated “I am satisfied that the Applicant's situation was not beyond his control. This is because he was responsible for his decision to enrol in full time study two days after a psychiatrist's medical report described him experiencing poor memory and concentration, and having an inability to study. As the Applicant had been diagnosed with a chronic major depressive disorder almost three years prior to this time and had experienced fluctuating symptoms, I find that his situation between July and October 2015 could not be described as 'unusual, uncommon or abnormal'.”
The VET AIP provides guidance from the Department of Education and Training as to the meaning of the applicable provisions. That policy statement provides a useful discussion as to the operation of the re-crediting provisions; however, it is not, thereby, able to recharacterize or circumscribe the requirements of the statutory language. I have taken into account the policy insofar as it conforms and assists in interpreting the relevant provisions.
The requirements of clause 48 of Schedule 1A of the Act are cumulative, and insofar as that clause provides that it applies “if and only if” the circumstances satisfy the description set out therein, it is precisely drawn. As a result, the “special circumstances” that apply to satisfy clause 46(2)(c) of Schedule 1A of the Act are circumstances that also specifically satisfy clause 48.
The special circumstances relied upon by the Applicant include a circumstance of what he describes as an “unsolicited call” along with a severe skin condition and chronic and severe anxiety and/or depression.
The Applicant commenced his studies in August 2015. The evidence is that he engaged with those studies in late 2015. In around December 2015 to early 2016, the Applicant ceased to be engaged with his course. In around March 2016 the Applicant decided to withdraw, and withdrew formally on 20 June 2016. On 19 August 2017, the Applicant applied for a re-crediting of the fees he had incurred. The census date for his unit of study was 14 September 2015.
Dr Sachdev’s evidence, set out in a letter dated 14 August 2017, is that the Applicant has a “long” history of eczema and anxiety symptoms, which he stated flared up in 2015. In a letter dated 12 April 2018, Dr Sachdev stated again that the Applicant suffered from chronic severe anxiety which flared up in 2015 and that the Applicant required referral to a psychiatric service. He stated that the Applicant saw the psychiatrist in June 2015 and recommenced taking medication for this condition. Dr Sachdev stated that the Applicant had a history of severe atopic dermatitis. Dr Ruiz provided a letter dated 5 December 2017, where she stated that she had seen the Applicant since 2012 and then again in 2015 for severe atopic eczema.
I find that the circumstance of the alleged unsolicited call that the Applicant referred to could not amount to a special circumstance under clause 46(2) of Schedule 1A of the Act and as provided for under clause 48. I consider that clause 48 of Schedule 1A of the Act, properly construed, requires a showing of circumstances that, in particular—leaving aside the question of a circumstance that is beyond the Applicant’s control, which appears directed to ensuring that self-created circumstances are not taken into account, or the temporal requirement with respect to the census date—are circumstances that make it impracticable for the person to complete the requirements of the unit. The unsolicited call relied upon by the Applicant is not a circumstance that satisfies that description.
There is a lack of specificity or elaboration with regard to the medical conditions relied upon by the Applicant and referred to in the medical evidence. Notwithstanding, I accept that severe eczema or anxiety and depression are capable of amounting to circumstances that make it impracticable for a person to complete the requirements of a unit of study. I also accept that both conditions are more likely than not to have been out of the Applicant’s control. However, I find that there is insufficient evidence that either condition made its full impact on the Applicant after the census date of 14 September 2015, as required by clause 48(b) of Schedule 1A of the Act.
The requirement to show that a circumstance has not made its full impact on the person until on or after the census date appears directed to a situation where a person has signed up for a course of study without knowing prior to the census date and acquiring the obligation to pay, that a circumstance existed that was beyond the person’s control and made it impracticable for them to complete the requirements for the unit.
I find that the evidence before the Tribunal is insufficient for a finding that the “flare up” referred to by Dr Sachdev, that is a worsening of the Applicant’s condition, occurred on or after 14 September 2015. In relation to the Applicant’s severe anxiety, Dr Sachdev’s evidence is that the psychiatrist treated the Applicant in June 2015. That is some time before the course start date and the census date.
Timing of the Application for Re-crediting
In addition to finding that the Applicant does not satisfy the requirement of showing “special circumstances”, I find that the Applicant’s application also fails to satisfy clause 46(2)(e) of Schedule 1A of the Act. On the evidence before the Tribunal, the Applicant failed to make an application before the end of the application period.
As set out above, clause 46(2)(e) of Schedule 1A of the Act requires that, in addition to meeting the requirements for re-crediting under clause 46(2), one of either of these two circumstances apply:
(a)the application is made before the end of the application period; or
(b)the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.
The Applicant submits that it was not possible to apply for a re-crediting of his FEE-HELP balance within the prescribed application period because “he did not know that he had a tax debt” until having completed his tax return for the financial year 2016/2017. However, the evidence establishes that the Applicant knew of the liability at least by February 2016.[6] The communication from MCI Institute on 23 June 2016 amounts to notification for the purposes of clause 46(2)(e)(i) and clause 49(1) of Schedule 1A of the Act, being a notice to the Applicant that the withdrawal had taken effect. From that date, the Applicant had 12 months, that is until 23 June 2017, to seek a re-crediting of his FEE-HELP balance.
[6] For example, in a record, dated 24 February 2016, the Applicant is reported to have stated that “… I still have a 9600 dollars HELP debt”.
On 19 August 2017, the Applicant applied to MCI Institute seeking the re-crediting of his VET FEE-HELP balance under clause 46 of Schedule 1A of the Act. As a result, the Applicant did not make an application for re-crediting before the end of the application period.
Finally, and although my earlier reasons do not make it strictly necessary for me to do so, I find that there is no basis to waive the requirement that the application be made before the end of the application 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: clause 46(2)(e)(ii) of Schedule 1A of the Act.
In Brown and Secretary, Department of Education and Training [2015] AATA 518, which concerned s 104-25(1) of the Act, the Tribunal stated in relation to the VET provider waiving the application period requirement:
In our view, it cannot be said in the circumstances described by Ms Brown that it was not possible for her withdrawal application to have been made within the 12 months following the conclusion of the first Trimester of her studies. The word possible is defined in The Shorter Oxford English Dictionary in the following way: 1. That may be (i.e. is capable of being); that may or can exist, be done, or happen; that is in one's power, that one can do, exert, use, etc. It should be immediately apparent that use of the word possible gives rise to a broad range of circumstances under which some action may be taken. For something not to be possible would require a very serious constraint to be placed on a person’s ability to act, in this case, by completing an application form and sending that form by email, fax or post to MIBT.
…
Whether Ms Brown’s FEE-HELP balance should be re-credited depends upon her satisfying the provisions set out in s. 104-25(1) of the HES Act. Although we have found that special circumstances apply to Ms Brown, the evidence before us does not provide a reason for waiving the requirement that her application for re-crediting be made before the end of the application period, being 12 months after the conclusion of the first Trimester.
We have found that it was possible for her application to be made before the end of that period and that she simply neglected to do so, even though she was aware of that requirement.
Even if it had been necessary to consider this question on the basis that I had found that there were special circumstances, I find that there was an absence of evidence to waive the requirement that the application be made before the end of the application period, on the ground that it was not possible for the application to be made before the end of that period. The evidence shows that the applicant knew of the liability by at least February 2016 and there is no other evidence to support a finding that it was not possible for the application to be made before the end of the application period.
For the reasons set out above, the Tribunal affirms the decision under review.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Pintos-Lopez

..[sgd]....................................................................
Associate
Dated: 29 November 2019

Date of hearing: 10 September 2018

Representative for the Applicant: Mrs Eeva Lehtonen

Representative for the Respondent: Ian Temby

Solicitors for the Respondent: Maddocks Lawyers

Date of hearing:	10 September 2018
Representative for the Applicant:	Mrs Eeva Lehtonen
Representative for the Respondent:	Ian Temby
Solicitors for the Respondent:	Maddocks Lawyers