Lushchayev and Secretary, Department of Education, Skills and Employment

[2022] AATA 374

Lushchayev and Secretary, Department of Education, Skills and Employment [2022] AATA 374 (4 March 2022)

Division:General Division 

File Number:2021/0307          

Re:Mr Mark Philip Lushchayev  

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:Senior Member  B. Pola

Date:4 March 2022

Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision of the Respondent, dated 22 December 2020.

.............[SGD]..................

Senior Member B. Pola

Catchwords

HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-credit – special circumstances – studying overseas; temporary accommodation; psychological stress – whether applicant’s circumstances were beyond his control – whether applicant’s circumstances made their full impact on or after the census date – no special circumstances – decision under review affirmed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administration Guidelines 2012 (Cth)
Higher Education Support Act 2003 (Cth)

Cases
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Montenegro v Secretary, Department of Education [2020] FCAFC 210

Ullah and Secretary, Department of Education and Training [2018] AATA 2159

REASONS FOR DECISION

Senior Member B. Pola

4 March 2022

BACKGROUND

1. The Applicant, Mr Mark Philip Lushchayev, enrolled in the following three units of study on  7 July 2020 as part of his Bachelor of Business and Commerce, which he was undertaking with the University of Southern Queensland (herein referred to as “USQ”), in the second Trimester of 2020[1]:

   (a)ACC1101 – Accounting for Decision-Making;

   (b)FIN1101 – Introduction to Corporate Finance; and

   (c)STA2300 – Data Analysis.

   [1]     Exhibit R1, Section 37 T Documents, T4, page 32. The Tribunal notes that USQ refers to their study periods

   as semesters, but in fact offer three study semesters per year, the Tribunal will refer to these study periods as “trimesters”.

2. As part of the Applicant’s enrolment in his Bachelor of Business and Commerce with USQ, the Applicant signed an acknowledgement, dated 20 February 2019, that[2]:

   (a)the Government lends him the student contribution for courses in his program, outstanding as at the census date, and pays the outstanding amount to his provider on his behalf;

   (b)he has an obligation to repay the Australian Taxation Office (herein referred to as the “ATO”) the amount the Government has leant him, even if he does not complete his studies;

   (c)his Higher Education Loan Program (herein referred to as “HELP”) debt with the Government would remain if he withdrew or cancelled his enrolment after the census date; and

   (d)he was able to cancel his enrolment with his provider at any time prior to the census date, otherwise he would have a debt to the Government that he is legally required to pay.

   [2]     Ibid, T3, pages 29 to 31.

3. The Applicant was advised that the relevant census date for withdrawal from his enrolled course (without incurring fees, i.e., HECS-HELP liability) was 7 August 2020 and that the last day to withdraw from a second Trimester unit of study (without a failing grade) was       11 September 2020[3].

   [3]     Ibid, T4, page 33.

4. The Applicant was subsequently issued with a statement from USQ, dated 13 August 2020, indicating the Applicant had incurred a total HECS-HELP debt of $3,978.00 for the three units of study[4]. The Tribunal observes the Applicant also incurred a student amenities fee of $115.50, which was also included in the same statement[5].

   [4]     Ibid, T8, page 62.

   [5]     Ibid.

5. On 10 September 2020, the Applicant withdrew from his three units of study (one day prior to the final date of withdrawal without academic penalty)[6]. On the same day, the Applicant applied to USQ for a remission of his HECS-HELP debt with respect to the three units of study[7].

   [6]     Ibid, T3, page 32.

   [7]     Ibid, T10, pages 65 to 67.

6. On 25 September 2020, USQ refused the Applicant’s application for remission of his HECS-HELP debt with respect to the three units of study[8].

   [8]     Ibid, T12, page 76; T13, pages 77 to 78.

7. On 21 October 2020, the Applicant applied to USQ for review of that decision and on            22 December 2020 the Pro Vice-Chancellor (Students), Professor Josh Pienaar, decided to refuse the Applicant’s request for remission of his HECS-HELP debt with respect to the three units of study[9].

   [9]     Ibid, T16, pages 93 to 95.

8. On 18 January 2021, the Applicant applied to the Administrative Appeals Tribunal (herein referred to as the “Tribunal”) for review of that decision[10].

   [10]    Ibid, T1, pages 1 to 20.

   JURISDICTION

9. Decisions by higher education providers regarding a refusal to re-credit a person’s HECS-HELP debt, pursuant to section 36-20 of the Higher Education Support Act 2003 (Cth) (herein referred to as the “Act”) are reviewable decisions, pursuant to section 206-1 (Item 1A) of the Act.

10. Applications can be made to the Tribunal under section 212-1 of the Act, for reconsideration of a, “reviewable decision” that has been confirmed, varied, or set aside, pursuant to section 209-10 of the Act.

11. The original decision was made on 25 September 2020. A request for an initial review of this decision by the Respondent was made by the Applicant, and on 22 December 2020, the original decision was confirmed[11]. It therefore follows that the Tribunal has jurisdiction to review this application.

    [11]    Ibid, T12, pages 79 to 83; T17, pages 91 to 96.

    ISSUE

12. The issue before the Tribunal is whether section 36-20(1)(d) of the Act applies to the Applicant – that is, whether USQ, on behalf of the Secretary for the Department of Education, Skills and Employment, must re-credit the Applicant’s HECS-HELP balance with an amount equal to the amount of HECS-HELP assistance that he received for the three units of study he undertook.

13. This, in turn, requires the Tribunal to consider whether, “special circumstances” apply to the Applicant, in accordance with section 36-21 of the Act, whilst also having regard to the Administration Guidelines 2012 (Cth) (herein referred to as the “Administration Guidelines”).

    LEGISLATIVE FRAMEWORK

14. Section 137-5 of the Act sets out provisions for determining when an individual incurs a HECS‑HELP debt. Importantly, section 137-5(3) states that an individual incurs a HECS-HELP debt, “immediately after the census date for the unit [enrolled in]…”, with section 137-5(4) stipulating that remissions of HECS-HELP debts are dealt with in section 36-20 of the Act.

15. Section 36-20(1)(d) of the Act provides that for an individual to apply for remission of their debt from a higher education provider, the provider is required to be satisfied that special circumstances apply to the person, pursuant to section 36-21 of the Act. Where special circumstances apply to an individual, section 36-20(2) of the Act states that the provider must pay the individual an amount equal to their student contribution for the unit of study and pay the Commonwealth an amount equal to the HECS-HELP assistance the person was entitled to for the unit of study. Sections 36-21(1) and (2) of the Act provides:

    36-21 Special circumstances

    (1)For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:

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

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

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

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

16. The Tribunal observes that all criteria stipulated in section 36-21(1)(a), (b) and (c) of the Act regarding special circumstances must be met for this test to be satisfied.

17. The Administration Guidelines, referred to in section 36-21(2) of the Act, are a legislative instrument made pursuant to section 238-10 of the Act and have application in the present matter.

18. The Tribunal refers to a recent decision of the Full Court of the Federal Court of Australia in Montenegro v Secretary, Department of Education[12], with respect to the adoption of Administration Guidelines, where His Honour Justice Flick stated[13]:

    …Where a provision thus requires that something is to be done “in accordance with” the Administration Guidelines, what is required is that those Guidelines themselves become a “substitute regime” which is to be complied with…

    [12] [2020] FCAFC 210.

    [13] Ibid, at [25].

19. His Honour Justice Charlesworth similarly stated in his reasons that the Guidelines form part of the statutory scheme for consideration by decision makers[14]:

    …For my part I do not consider the Guidelines to be “relevant considerations” in the sense advanced by counsel for the appellant in the course of submissions. Rather, they form a part of the statutory scheme that conferred, defined and conditioned the decision-maker’s powers…

    [14] Ibid, at [64].

20. In view of the above, the Tribunal ought to have regard to the Administration Guidelines. The Tribunal has transposed the relevant provisions:

    3.5  CIRCUMSTANCES BEYOND A PERSON’S CONTROL

    3.5.1 A higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.

    3.5.5 The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.

    3.10  CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE

    3.10.1 A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:

    (a)before the census date, but worsen after that day; or

    (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.

    3.15  CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS

    3.15.1 A higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit if circumstances such as the following occur:

    (a)medical circumstances. For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or

    (b)family/personal circumstances. For example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies; 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 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.

    A person is unable to complete the requirements for a unit if the person is unable to:

    (a)undertake the necessary private study required, or attend sufficient lectures or

    tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or

    (b)complete the required assessable work; or

    (c)sit the required examinations; or

    (d)complete any other course requirements because of their inability to meet (a),

    (b) and (c) above.

    CONSIDERATION

21. This application was heard by telephone in Brisbane on 20 January 2022. The Applicant was represented by his father, Mr Ted Lushchayev. The Respondent was represented by Ms Subasha Prasad of Minter Ellison, and Ms Maple Ko from the Department of Education, Skills and Employment was also present.

22. The Tribunal heard oral submissions from the Applicant, the Applicant’s father (for opening and closing submissions on behalf of the Applicant) and the Respondent’s representative. Additionally, the Tribunal considered submitted evidence outlined in the Exhibit Register, in Annexure 1 of these reasons.

23. As stated in earlier reasons, the issue for consideration before the Tribunal is whether section 36-20(1)(d) of the Act applies to the Applicant. The Respondent does not contest the remaining provisions of section 36-20(1) of the Act, and accepts the remaining provisions are satisfied by the Applicant.

    Do special circumstances apply?

24. The issue for the Tribunal to consider is whether special circumstances apply to the Applicant. That is, whether the Applicant has demonstrated to the Tribunal that for the units of study in question, his circumstances, pursuant to section 36-21(1) of the Act:

    (a)were beyond his control; and

    (b)did not make their full impact on him until on or after the census date; and

    (c)made it impracticable for him to complete the requirements for the unit(s) of study in the period during which he undertook or was to undertake the unit(s).

    Were circumstances beyond the Applicant’s control?

25. The Administration Guidelines (transposed in earlier reasons of this decision) state that circumstances are considered beyond the Applicant’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible (observing that the situation must be unusual, uncommon, or abnormal)[15].

    [15]    Administration Guidelines 2012 (Cth), paragraph 3.5.

26. With respect to the timeline of evidence before the Tribunal, the following is relevant:

    (a)The Applicant departed Australia on 14 March 2020 for Amsterdam, with return flights booked for mid-May 2020[16]. A few days following the Applicant’s departure from Australia, changes were announced with respect to the management of Australia’s borders, preventing entry from all non-citizens and non-residents, and limiting international flights to Australia to the repatriation of Australian citizens and residents, as well as the movements of goods and freight[17]. This, in turn, impacted the Applicant’s ability to return to Australia, with his return flights cancelled on                    23 April 2020[18].

    [16]    Exhibit R1, Section 37 T Documents, T11, pages 68 to 70.

    [17]    Exhibit R2, Supplementary Section 37 T Documents, S6, pages 13 to 14.

    [18]    Exhibit R1, Section 37 T Documents, T11, page 71.

    (b)Given the implications to the Applicant with respect to Australia’s changed border policies, and the limited availability of flights (following enquiries made by the Applicant[19]), he chose to remain overseas in Schuttorf, Germany, where he attended and trained at a soccer academy.

    [19]    Transcript (20 January 2022), page 8, lines 27 to 37.

    (c)The Applicant’s father, Mr Ted Lushchayev, stated the following with respect to the Applicant’s enrolment in his three units of study in the second trimester of 2020[20]:

    [20]    Exhibit R2, Supplementary Section 37 T Documents, S3, pages 5 to 7.

    … Indeed, Mark was overseas in Germany since March 2020, when he made decision to enroll (sic) into 3 courses with USQ. This was largely, due to us as parents, pushing him to use online environment of studies due to COVID that was possible at the time. However, him being in Germany and training twice a day for 4 days, plus another day of training and game on weekend, was still quite difficult for Mark to manage. He was intending to complete studies and did request extensions for some quizzes, but certainly he underestimated physical load that was affecting his studies. To make things more difficult they had influx of new comers to academy during month of August, which created more noisy, busy environment and less space in time to find quiet location to study. By the time Mark realized that he is struggling, date for withdrawal without fees already passed. He did attempt few quizzes, but overall it was getting difficult to manage. Towards end of August situation with manager of academy deteriorated to conflict and Mark was forced to leave academy on 30th of August, moving to hotels/motels. Soon after decision was taken to withdraw from courses completely.

    In summary, while being overseas Mark was underestimated the difficulty to study remotely in different time zone and varying environment where he was in. It was outside of his control when it changed rapidly in August, with culminating event at the end of August. However, it is now clear that in lead-up to this, it did progressively got worse, but he only realized it too late…

    (d)With respect to the events leading up to the census date for the Applicant to withdraw from subjects (being 7 August 2020), the Applicant, in submissions to the Tribunal, stated[21]:

    [21]    Ibid, S4, pages 6 to 7.

    … I would like to confirm that I was overseas in Germany since March 2020, where I cam to pursue soccer tryouts. Pandemic just started and quickly all flights were canceled (sic) to return home. While in Germany, I had good progress with soccer academy and I decided to train and stay longer to start possible season in August/September (subject to pandemic re-opening). While in lock-downs we still trained and stayed in academy (Germany, town of Schuttorf) facilities with Wi-fi . I decided to enroll (sic) to study 3 courses.

    It was challenging, but manageable to do this from overseas and in different time zone. In August, we had more people arriving into Academy so it did cause some disruption, as it was getting noisier, but overall I could still find some quiet time. However, towards mid-end of August I had more scandals in the academy, more tension with their manager. This resulted in break-up of relationships and on 30th of August I abruptly had to leave, as I was getting psychologically and mentally abused and threatened, so it was very distressing environment. My father booked me taxi to Cologne (big city) on 30th of August and I left, then I had to go from hotel to hotel (every few days) subject to availability, find food, manage relocations, so it was practically impossible to continue studying. Also academy manager continued to send me threat messages, chasing money, saying he will report me to immigration (although no reason, as I was valid) and all of the above put a lot of psychological, physical and environmental stress (switching to/from hotels, doing laundry, finding food, unstable wifi etc.) So I decided to withdraw from studies without penalty on 10/9/2020.

    …

    … Unforeseen circumstance did worsen and full effect and magnitude only become apparent at the end of August (well and truly passed the census date). I did prevent me from studying, as mentally I was in distress and actually took me a while to recover from this abusive situation. I did try to request extension for my assignment with STA2300 course on 2/09/2020 (see attached), as even in hotels I was still hopeful that I could complete the course (receipts for hotels were provided). This extension was granted, but with each day away from academy and with mental stress that I experienced became more evident and I requested to withdraw on 10/09/2020.

    I would like to state again, that full extent was not evident and magnitude of the toll it took, only became apparent end of August/early September. I usually put more effort towards exams/assignments, as I am a slow starter, hence my initial quizzes were missed, but I did finish 6 courses already in USQ and in Economics achieving grade A. I know how to study remotely (I lived on Gold Coast and all my studies were online before).

    Here my circumstance went out of control in progression, with something I never experienced before where mental toll, environmental disruption were greater than I could handle, and this I could only realize at later date…

    (e)There is evidence before the Tribunal from early September 2020 of hotel bookings[22], and a record of conversation between the Applicant and his father                  (Mr Ted Lushchayev)[23], regarding the Applicant leaving the soccer academy for alternate accommodation.

    (f)The Tribunal observes that there is no independent medical evidence before it with respect to the Applicant’s claims regarding the psychological stress he experienced after the deterioration in the relationship with his manager at the soccer academy he was attending. Further, there is no independent evidence regarding the occurrence of this incident, a fact which was acknowledged by the Applicant’s father in closing submissions before the Tribunal[24]. However, the Tribunal does accept there is evidence before it regarding the Applicant’s departure from his accommodation at the time of this incident, evidenced by the hotel bookings and conversation records between the Applicant and his father.

    (g)The Tribunal heard evidence from the Applicant that he chose to enrol in the three units of study in the second trimester of 2020, as he believed he would be able to manage this study load with his training schedule, particularly given that he had sat an exam for a subject he undertook in the first trimester of 2020 whilst he was overseas[25].

    (h)The Applicant’s unofficial academic transcript shows that in trimester one of 2019, he had undertaken four units of study – passing one, but failing three, with one of the failed subjects recorded as ‘did not sit’. For trimester two of 2019, the Applicant had again undertaken four units of study – passing two and failing the remaining two subjects. The Tribunal notes that the Applicant had, in 2019, previously failed the three units of study he chose to re-enrol in for the second trimester of 2020[26].

    [22]    Exhibit R1, Section 37 T Documents, T11, pages 72 to 75; Exhibit A1, Travel Tickets and Hotel Bookings,

    pages 4 to 11.

    [23]    Ibid, T15, pages 88 to 92.

    [24]    Transcript (20 January 2022), page 21, lines 43 to 47; page 22, lines 1 to 3.

    [25]    Ibid, page 9, lines 42 to 47.

    [26]    Exhibit R1, Section 37 T Documents, T21, page 120.

1. Upon reflection of the evidence before it, the Tribunal is of the view the Applicant would have been aware of the:

   (a)Study load he had chosen to undertake when he enrolled in the three units of study in the second trimester on 7 July 2020;

   (b)Demand of the study load, given the Applicant had failed all three subjects previously during 2019, which he chose to re-enrol in on 7 July 2020; and    

   (c)Pressures of managing this study load against the requirements of the soccer academy he was training at for some time prior to his enrolment in the three units on 7 July 2020.

2. The Applicant had been living in Germany for several months prior to him choosing to enrol in the three units of study on 7 July 2020, and he was aware of the demands of living at and participating in the soccer academy. Upon consideration of the evidence before it, the Tribunal is of the view that it was within the control of the Applicant to withdraw from his three units of study prior to the census date of 7 August 2020. The requirements of his study and the demands of his commitment to the soccer academy were known to him prior to his enrolment in the units of study on 7 July 2020.

3. It is the Tribunal’s view that a reasonable person would not consider that the circumstances the Applicant found himself in were beyond his own control. Further, the Tribunal is not convinced that the circumstances the Applicant found himself in at the end of August/beginning of September 2020, were, “unusual, uncommon or abnormal” in the context of applying sub-paragraph 3.5.5 of the Administration Guidelines.

   Did circumstances make their full impact on or after the census dates?

4. With respect to the application of section 36-21(1)(b) of the Act, that is whether the Applicant’s circumstances made their full impact on or after the census date, the Administrative Guidelines state that 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[27]:

   (a)Before the census date, but worsen after that day; or

   (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.

   [27]    Administration Guidelines 2012 (Cth), paragraph 3.10.

5. With respect to the timeline of events leading up to the Applicant’s withdrawal from his studies after the census date, the Tribunal observes that the Applicant struggled to meet the demands of his coursework, with assessments falling on dates immediately after the census date of 7 August 2020. Evidence before the Tribunal confirms the Applicant had missed assessments for all three units of study prior to his withdrawal on   10 September 2020:

   (i) ACC1101 – Accounting for Decision-Making, with assessment records indicating nothing was received for an online test, due on 10 August 2020[28];

   (ii)FIN1101 – Introduction to Corporate Finance, with assessment records indicating nothing was received for an online examination on 7 September 2020[29]; and

   (iii)STA2300 – Data Analysis, with assessment records indicating the Applicant received a mark of 5.68 out of 15 for an online quiz on 16 August 2020, and did not submit an assignment which was due on 3 September 2020[30]. With respect to this assignment, the Tribunal observes the applicant sought an extension on  2 September 2020 on the grounds that, “… I am trying to return back to Australia, hence it is challenging to keep up with work, due to limited internet…”[31].

   [28]    Exhibit R1, Section 37 T Documents, T17, page 98; T20, page 115.

   [29]    Ibid, T18, page 104; T20, page 117.

   [30]    Ibid, T19, page 111; T20, page 118.

   [31]    Exhibit R2, Supplementary Section 37 T Documents, S8, page 22.

6. The Tribunal observes that the extension sought for the assignment for STA2300 – Data Analysis, on 2 September 2020, occurred only a few short days following the incident described by the Applicant regarding his altercation with the manager at his soccer academy, on 30 August 2020. In the Tribunal’s view, the actions of the Applicant in seeking this extension for assessment following the event on 30 August 2020 indicates that he was intending to continue with his studies at that time.

7. It is not clear to the Tribunal, based on the evidence of the Applicant, that the full effect of or the magnitude of his circumstances occurred after the census date of 7 August 2020. The Applicant’s evidence was that, “in August” he began to experience issues at the soccer academy which caused, “disruptions”, but ultimately culminated in the Applicant’s deciding to leave the soccer academy on 30 August 2020[32]. It seems on the face of the Applicant’s statement that circumstances were present prior to the census date.

   [32]    Exhibit A4, Applicant Statement, page 3.

8. The Tribunal observes that the statement from the Applicant’s father aligns with the Tribunal’s assessment of the circumstances of the Applicant which existed prior to the census date[33]:

   … He was intending to complete studies and did request extensions for some quizzes, but certainly he underestimated physical load that was affecting his studies. To make things more difficult they had influx of newcomers to academy during month of August, which created more noisy, busy environment and less space in time to find quiet location to study. By the time Mark realized that he is struggling, date for withdrawal without fees already passed. He did attempt few quizzes, but overall it was getting difficult to manage. Towards end of August situation with manager of academy deteriorated to conflict and Mark was forced to leave academy on 30th of August, moving to hotels/motels. Soon after decision was taken to withdraw from courses completely…

   [Tribunal bolding for emphasis]

   [33]    Ibid, page 4.

9. The Tribunal is not convinced, on the state of the evidence, that the Applicant’s circumstances made their full impact on him on, or after the census date, as evidence before the Tribunal indicates that his experience at the soccer academy began to deteriorate in August, prior to the stated altercation on 30 August 2020. Further, the Tribunal agrees with the Respondent’s contention that the Applicant’s circumstances prior to the census date made it difficult for the Applicant to complete his studies from the moment he chose to enrol (i.e., the demands of the training regime at the soccer academy, his shared living arrangements, and living in a foreign country without any familial support)[34]. Additionally, the Applicant’s actions of seeking an extension for assessment in early September 2020 (following the stated incident on 30 August 2020) indicates that the Applicant was, at that time, intending to continue with his studies.

   [34]    Exhibit R3, Respondent Statement of Facts, Issues and Contentions, page 14, paragraph 53.

10. In view of the above reasons, the Tribunal is not satisfied that the magnitude of the Applicant’s circumstances made their full impact upon him on or after the census date for his units of study. Further, it seems on reflection of the evidence, that the Applicant had been struggling to meet the demands of his study prior to the census date, as he failed to complete assessments which fell immediately after the census date for his units of study (outlined in the earlier reasons of this decision).

    Did circumstances make it impracticable for the Applicant to complete requirements of the units of study in question?

11. With respect to the application of section 36-21(1)(c) of the Act, the Administration Guidelines relevantly state that a higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake the unit, if circumstances such as, “medical circumstances” can be established (for example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying)[35].

    [35]    Administration Guidelines 2012 (Cth), paragraph 3.15.1(d).

12. With respect to the listed circumstances, the Administration Guidelines further state that a person is unable to complete the requirements for a unit if the person is unable to[36]:

    (a)    undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or

    (b)    complete the required assessable work; or

    (c)    sit the required examinations; or

    (d)    complete any other course requirements because of their inability to meet (a), (b) and (c) above.

    [36]    Ibid, second sub-paragraphs (a), (b) and (c).

13. There was no medical evidence tendered to the Tribunal to support the Applicant’s statements that he had been exposed to mental abuse and had suffered psychologically in a very distressing environment, or that he had been threatened[37]. This was confirmed by the Applicant’s father during closing submissions[38]. The Tribunal is not persuaded by the unsubstantiated claims of the Applicant with respect to meeting the medical circumstances criteria in the Administration Guidelines.

    [37]    Exhibit R2, Supplementary Section 37 T Documents, S4, pages 6 to 7.

    [38]    Transcript (20 January 2022), page 21, lines 43 to 47; page 22, lines 1 to 3.

14. The Tribunal is of the opinion that none of the other remaining circumstances within the Administration Guidelines have application to the Applicant after examining the submissions and evidence in this matter (namely family/personal, employment and course related circumstances, pursuant to paragraph 3.15.1).

15. The Tribunal notes that with respect to submissions made by the Applicant and his father regarding the lack of familial support, this was evident to the Applicant prior to his enrolment in the units of study, as he had been residing overseas since March 2020. Further, evidence before the Tribunal indicates that the Applicant had failed to complete assessments from the units of study in question prior to his withdrawal, as detailed in earlier reasons of this decision.  

16. With respect to whether circumstances made it, “impracticable” to complete study requirements, the Tribunal refers to Ullah and Secretary, Department of Education and Training[39], where Member Hyman stated:

    In my view none of the matters canvassed made it impracticable for Mr Ullah to continue his studies. Mr Ullah’s problems with his studies certainly made it more difficult for him to succeed, but they did not make it impracticable to continue, and he acknowledged during the hearing that although internet access in his village was limited, it was not so limited as to make it impossible for him to continue his studies. His loss of employment when he left Pakistan no doubt reduced his income but did not prevent him from studying. His wife’s health, as noted above, did not, on the evidence available to me, change significantly after the census date and so there is no evidence that it had an impact on his ability to study.

    [39] [2018] AATA 2159 at [36].

17. The Tribunal also refers to Senior Member A Poljak in Georgiou and Secretary, Department of Education and Training, where the following was stated with respect to “impracticable”[40]:

    I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. However, while the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of the Units, it is insufficient to establish that the circumstances were such that it was impractical for this to be done. I note that in the letter of Ms Malone she speaks of the applicant’s cognitive difficulties and its impact on her decision-making capabilities; I give this evidence little weight as it is not contemporaneous to when the applicant allegedly withdrew from the Units, or the census date in 2013.

    [40] [2019] AATA 170 at [20].

18. The Tribunal has earlier observed that the Applicant sought an extension for assessment only a few days after the stated event (which the Applicant claimed occurred on 30 August 2020). This is an action which, in the Tribunal’s view, is not consistent with a finding that the Applicant’s circumstances made it in impracticable for him continue his study requirements as the act of applying for the extension for assessment infers the Applicant was of the view, at the time, that he was able to continue in his studies.

19. On reflection of the evidence before it, the Tribunal is not persuaded the Applicant’s circumstances made it impracticable for him to complete requirements of the units of study in question.

    Summary

20. For special circumstances to be established, pursuant to section 36-21(1) of the Act, all limbs of the test must be satisfied (that is, section 36-21(1)(a), (b) and (c)).

21. Special circumstances apply to a person where it is established that the circumstances (1) were beyond the person’s control; and (2) did not make their full impact on the person until on or after the census date for the unit of study; and (3) made it impracticable for the person to complete the requirements for the unit during the period which the person undertook or was to undertake the units of study.

22. The Tribunal has found that the Applicant did not meet any of the requisite limbs, pursuant to sections 36-21 (a), (b) and (c) of the Act. Therefore, the Tribunal is not satisfied that special circumstances apply to the Applicant as prescribed by section 36-20(1)(d) of the Act. The Tribunal therefore finds the Applicant is not entitled to have his HECS‑HELP debt for the relevant units of study remitted to him, pursuant to section 36-20(2) of the Act.

    DECISION

23. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision of the Respondent, dated 22 December 2020.

    I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola.

    ………[SGD]……………

    Associate

    Date: 4 March 2022

    Date of Hearing:  20 January 2022

    Applicant:  Mr Mark Philip Lushchayev

    Applicant Representative:                 Mr Ted Lushchayev

    Respondent:  Secretary, Department of Education, Skills and Employment

    Respondent Representative:             Ms Subasha Prasad (Minter Ellison)

    Annexure 1 – Exhibit Register

Exhibit Number	Description of Exhibit	Party	Date of Document	Date of Receipt
R1	Section 37 T Documents (pages 1 to 170)	R	Undated	22 March 2021
R2	Supplementary Section 37 Supplementary T Documents (pages 1 to 26)	R	6 October 2021	6 October 2021
R3	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 16)	R	6 October 2021	6 October 2021
R4	Respondent Submission in Reply to Applicant Email dated 29.06.2021	R	20 July 2021	20 July 2021
R5	Respondent Submission in Reply to Applicant Email dated 10.08.2021; Attached Screenshot	R	Various dates	24 August 2021
A1	Travel Tickets and Hotel Bookings (pages 1 to 11) Repeated in Exhibit R1	A	Various dates	18 January 2021
A2	Statement from Mr Ted Lushchayev; Emails with Course Coordinator (ACC1101) and USQ (pages 1 to 7) More legible copy of emails re-filed 13 July 2021 Repeated in Exhibit R2	A	Various dates	29 June 2021
A3	Applicant Reply Email to Respondent Email dated 20.07.2021	A	23 July 2021	23 July 2021
A4	Applicant Statement; Assignment extension request (STA300) (pages 1 to 7) Repeated in Exhibit R2	A	Various dates	10 August 2021
A5	Applicant Reply to Respondent Email dated 24.08.2021	A	24 August 2021	24 August 2021