Mitchinson and Secretary, Department of Education
[2025] ARTA 2178
•13 October 2025
Mitchinson and Secretary, Department of Education [2025] ARTA 2178 (13 October 2025)
Applicant/s: Alexander Colin Mitchinson
Respondent: Secretary, Department of Education
Tribunal Number: 2024/8959
Tribunal:R Cameron General Member
Place:Melbourne
Date:13 October 2025
Decision:The Tribunal affirms the decision under review.
...............[SGD].....................
R Cameron General Member
Catchwords
HIGHER EDUCATION – HELP debt – re-credit of HELP balance within 12 – month application period – HELP balance for units enrolled in a Bachelor of Health Science (Acupuncture Therapies) – no withdrawal from units or an application for re-credit – should the application period be waived – reviewable decision affirmed.
Legislation
Higher Education Support Act 2003 (Cth)
Evidence Act 1995 (Cth)
Cases
CPNG and Secretary, Department of Education [2022] AATA 4349 at [85]
Brown and Secretary, Department of Education and Training [2015] AATA 518 at [35]
Thomson and Secretary, Department of Education, Skills and Employment [2020] AATA 4672 at [32]
TYJD and Secretary, Department of Education, Skills and Employment [2021] AATA 2184, [27]Statement of Reasons
INTRODUCTION
The Applicant seeks review of a decision made by a delegate of the Respondent on 4 October 2024 pursuant to s212.1 of the Higher Education Support Act 2003 (Cth) (“the HES Act”) which declined to re-credit his HELP balance for units enrolled in by him in a Bachelor of Health Science (Acupuncture Therapies).
THE EVIDENCE BEFORE THE TRIBUNAL
There was both oral and documentary evidence adduced before the Tribunal of the hearing of this application.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both oral and documentary evidence adduced before the Tribunal for the hearing of this application.
The Applicant, who was self-represented, gave oral evidence and was searchingly cross-examined. His father also gave evidence but was not cross-examined.
By way of documentary evidence there was received in evidence an agreed Joint Tender Book (“JTB”) which comprised 355 pages.
BACKGROUND
There was much material before the Tribunal in this matter which need not be addressed for the purposes of these reasons. The background facts are comparatively straightforward.
In July 2017 the Applicant enrolled in a Bachelor of Health Science (Acupuncture) course at an institution known as the Endeavour College of Natural Health (“Endeavour”). He undertook a variety of subjects, details of which need not be canvassed.
Subsequently, the Applicant on 7 March 2022 transferred to another course offered by Endeavour being a Bachelor of Health Science (Acupuncture Therapies).[1] He enrolled in four units offered by Endeavour in that study program.
[1] JTB, 124.
On 11 March 2022, the Office of Student Records at Endeavour sent an email to the Applicant.[2] There was no suggestion that the Applicant did not receive this email. The email advised him, amongst other things, that he had not yet officially applied to FEE-HELP by submitting the required eCAF form. He was further advised within that email that because he had transferred from one degree to another, as previously recorded, Endeavour required him to make a new eCAF application. It was explained to him that in order to have his fees allocated to FEE-HELP required by the HES Act it required the completion of a Request for Commonwealth Assistance form. Such form was to be submitted by way of an eCAF application before the first or next census date which was 31 March 2022. Additionally, the email informed the Applicant that before applying for FEE-HELP he was required to read the 2022 FEE-HELP information booklet. It was also stated that the submission of the eCAF is confirmation that he had read and understood the information included. A hyperlink to the 2022 FEE-HELP information booklet was included in the email.
[2] JTB, 126.
In cross-examination, the Applicant was asked whether he had read the 2022 FEE-HELP information booklet referred to in that email or at the time of submitting the eCAF form. His response was that he was unable to recall. He was also asked whether Endeavour was entitled to assume that he had read and understood the contents of the 2022 FEE-HELP booklet. His response was that he assumed that if he had declared he had read the terms and conditions he probably had read it. The Tribunal concludes that it is more probable than not that the Applicant, even if in passing, read the contents of the 2022 FEE-HELP booklet on about the time that the email of 11 March 2022 was received by him.
In cross-examination the Applicant was taken to a specific page of the 2022 FEE-HELP booklet.[3] That page addressed the “Census Date” and “Withdrawing from Study”. The contents of those sections speak for themselves. However, it is worthwhile recording for the purposes of these reasons the parts of what those sections included. With respect to the census date, it advised that it is the most important date for a student “as it is a legal deadline”. With respect to Withdrawing from Study, the booklet advised that to withdraw from a unit or course without getting a HELP debt or losing an upfront payment the student must complete the provider’s (Endeavour’s) formal withdrawal process by the census date. Further, it provided that it was the student’s responsibility to ensure that they had withdrawn properly and to keep evidence of such withdrawal.
[3] JTB, 262.
These parts of the 2022 FEE-HELP booklet were drafted in plain and straightforward language that would be readily comprehensible to any reader. In cross-examination when the Applicant was taken to these sections of the booklet, he was asked several questions. One of those questions was if he wanted to withdraw without accruing a HELP debt, he was required to withdraw by the census date. His response was not particularly satisfactory and rather evasive. He stated that he would “waiver that information” due to his limiting health issues at the time and inability to withdraw due to difficulties with computer software. He didn’t identify what the computer software difficulties were. He was also taken to the specific section Withdrawing from Study. In effect he stated that, due to being unable to recall, he could not agree that he knew that he would have a future HELP debt for every course he enrolled in unless he withdrew from study as required. The Tribunal cannot accept this evidence from the Applicant as it is satisfied that he read and understood the contents of the 2022 FEE-HELP booklet.
On 4 April 2022 the Applicant lodged a completed eCAF application for FEE-HELP through the student portal at Endeavour.[4] Written confirmation was sent by a Student Records Officer of Endeavour on 6 April 2022 acknowledging receipt of the application and informing that the matter had been finalised on his student record and that FEE-HELP was now enabled as his default payment method for his degree.[5] Further, he was advised in that email that only subjects that remain enrolled past the census date can or will be charged to his FEE-HELP account. In cross-examination the Applicant was asked whether he recalled completing the eCAF application as recorded in the documents concerned. His response was that he did not remember. Given the records produced concerning the application, and of course the confirmatory email sent by Student Records of Endeavour, the Tribunal concludes that the Applicant did complete and lodge the relevant eCAF application.
[4] JTB, 97.
[5] JTB, 154.
On 5 August 2022 an officer of Endeavour contacted the Applicant by telephone and explained to him that for various reasons, that are not relevant to this application, he was only permitted to enrol in one unit for the subsequent study period. That unit was BIOA111-Introduction to Human Biology. He was advised that he had been enrolled for such subject for the August Online Seminar. Following the telephone conversation the Officer of Endeavour sent an email to the Applicant confirming the contents of that telephone call. Importantly, the email also informed the Applicant that the “census date” for the August 2022 unit for which he had enrolled was 26 August 2022.[6]
[6] A file note of the conversation between the Applicant and an employee of Endeavour and the subsequent email to the Applicant of 5 August 2022 are at JTB, 129. The accuracy of those documents was not challenged by the Applicant.
In evidence before the Tribunal was a log of what is known as a “Learning Management System” (“LMS”) maintained by Endeavour.[7] This document is perhaps best described as an activity log which records the Applicant’s online activity with Endeavour for the BIOA111 unit for which the Applicant was in enrolled. It shows multiple entries. In cross-examination it was put to the Applicant that the log revealed that he was engaging with the LMS after the census date. After several questions along these lines were put to him, which he did not directly answer, the Applicant reluctantly conceded that he had engaged with the LMS using his home Internet as recorded in that log.
[7] JTB, 141.
Another extract from the LMS maintained by Endeavour was put to the Applicant in cross-examination.[8] It was a message sent by the Applicant to his course instructor for the BIOA111 unit on 26 August 2022 in which he sought an extension for completion of an exercise. The Respondent contended that the interactions with Endeavour, as recorded in the activity log and the message of 26 August 2022, were actions that were inconsistent with the Applicant’s contentions that he had withdrawn from that unit by that date. The Tribunal agrees with this contention. Additionally, and relevant for the purposes of this application, they show that throughout the timespan depicted in those documents the Applicant was able to maintain regular and meaningful contact with Endeavour by Internet. This fact is contrary to assertions made by him later that it was effectively impossible for him to do so.
[8] JTB, 150.
Subsequently, on 20 December 2022 the Applicant’s results for the BIOA111 unit were published which revealed he had failed.
The Applicant on 21 May 2024 lodged with Endeavour a “Remission of Financial Liability due to Special Circumstances Application Form-HE”.[9] It was an application seeking re-credit of his HELP balance for the applicable units. That application was accompanied by a significant number of documents including statutory declarations of the Applicant, a statement from his mother with attachments, a radiology report and a medical certificate from the Applicant’s treating general practitioner.
[9] JTB, 166.
Endeavour on 2 July 2024 refused the application for re-credit of the Applicant’s HELP balance for FEE-HELP assistance received for the units concerned.
The Applicant sought reconsideration or review of the decision made by Endeavour on 2 July 2024. In furtherance of that reconsideration, the Applicant furnished further documents to Endeavour being a medical certificate from another of the Applicant’s treating general practitioners and a further statement from him.
After a reconsideration of the 2 July 2024 decision, which was undertaken by the National Student Experience Manager of Endeavour, that decision was affirmed on 4 October 2024.[10] The decision-maker did so because he was not satisfied that the criteria necessary for re-crediting of FEE-HELP due to special circumstances or circumstances beyond the Applicant’s control had been met. It is from this decision the Applicant seeks review in this Tribunal.
[10] JTB, 208.
THE LEGISLATIVE REGIME
The circumstances in which a person’s HELP balance can be re-credited are addressed in Subdivision 104-B of the HES Act (“Re-crediting HELP balances in relation to FEE-HELP assistance”).
Section 104.25(1) of the HES Act provides as follows:
(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.
(Emphasis added)
The term ‘special circumstances’ is defined in s 104.30 of the HES Act. It is not necessary to reproduce that section in full for the purposes of these reasons. However, it provides that for the purposes of s104.25 (1) (c) of the HES Act special circumstances apply to a person if, and only if, the higher education provider receiving the application is satisfied that circumstances apply to such person that are beyond that person’s control and do not make their full impact on the person until after the census date for the unit of study in question.
The term application period is defined in s 104-35 of the HES Act as follows:
Application period
(1) If:
(a) the person applying under 104 - 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) If:
(a) the person applying under paragraph 104 - 25(2)(d) for the re - crediting of the person's * HELP balance in relation to a unit of study has withdrawn from the unit; and
(b) * Open Universities Australia 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 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.
ISSUES BEFORE THE TRIBUNAL
It is considered that the following issues arise for determination by the Tribunal in this application:
(a)Was the application for re-credit for the August 2022 BIOA111 unitwithin the application period specified by s104.25(1)(e)(i) of the HES Act, or if not, whether the application period should be waived, in accordance with S 104.25(1)(ii) of the HES Act; and
(b)If the application period is waived, whether special circumstances apply with respect to the Applicant for the August 2022 BIOA111 unit in accordance with s104.25(1) (c) of the HES Act.
CONSIDERATION
Was the application for re-credit for the August 2022 unit (BIOA111-Introduction to Human Biology) made by the Applicant made within the application period specified by s 104.25(1)(e)(i) of the HES Act?
The application for re-credit for the August 2022 BIOA111 unit was not made by the Applicant made within the application period specified by s104-25 (1) (e) (i) of the HES Act.
The application was made on 21 May 2024. Section 104.35 of the HES Act provides that the ‘application period’ for the purposes of s 104.25(1)(e) of the HES Act is 12 months after the period during which the Applicant undertook or was to undertake the unit if they have not withdrawn from such unit.
Did the Applicant withdraw from the August 2022 unit (BIOA111-Introduction to Human Biology)?
The Applicant’s evidence concerning his alleged withdrawal from the unit was not very satisfactory. When in the witness box, he stated that he “thought” he had withdrawn from the unit. No details of how this occurred were provided by him either in his evidence-in-chief or in cross-examination. In a personal statement that was lodged with Endeavour dated 7 August 2024, the Applicant said that he called and spoke to reception approximately at the time of the census date in 2022.[11] He said he explained why he was not able to start and would not be commencing the unit. He also stated that he had a doctor’s certificate issued around the time of the census date. He said he believed that the phone call effected a withdrawal from the unit. Further, in that personal statement he said that he had not actually started the unit and therefore, he was not required in effect to submit an application for what he described as “a fee remission” within 12 months. He also stated that he only became aware of the liability when he received notice of it in the post in 2024. There is simply no evidence before the Tribunal to support these versions of the events. Also, the Tribunal observes that when in the witness box, the Applicant did not provide a version of the events in similar terms to that outlined in his personal statement of 7 August 2024.
[11] JTB, 220.
On the contrary, the records of the education provider Endeavour reveal that the Applicant remained enrolled in the BIOA111 unit. He was, as noted earlier, assessed for that unit. It has been observed earlier in these reasons that the Applicant continued to engage with both Endeavour and one of his instructors for the course of BIOA111 after his enrolment. This is clearly contrary to his contention is that he had not actually started such a course and also his comment that he told someone in a phone call that he would not be commencing. The authenticity or accuracy of the records produced by the Respondent at the hearing were not challenged. Further, the fact that Endeavour maintained, what is obviously a computerised record-keeping system, does attract, in the view of this Tribunal, a practical application of the rules of evidence concerning business records and documents produced by processes, machines and other devices in the course of that business as contemplated by the Commonwealth Evidence Act 1995 (Cth). Section 69 provides that the hearsay rule does not apply to a document that forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of a business.[12] The business records provisions and other provisions of that act facilitate the proof of recurring transactions maintained by such persons. They are prima facie proof of their contents.
[12] Reference should also be made to s 147 of the Evidence Act 1995 (Cth) which addresses documents produced by processes, machines and other devices.
There seems to be no reason why this approach should not be adopted by this Tribunal in this application. The Tribunal sees no reason not to accept such records as have been produced as being accurate. In cross-examination the Applicant did not go so far as to say he actually had withdrawn only that he thought he had. It is more probable than not that the Applicant’s recollection on this question is faulty. Therefore, the Tribunal concludes the Applicant did not withdraw from that unit.
Therefore, as prescribed by s 104.35 of the HES Act the specified application period was 12 months after the date the results for the BIOA111 unit were published, namely 20 December 2023.
Should the application period be waived?
At the outset, when addressing whether a person is entitled to a re-credit of their FEE-HELP balance, one must consider the language used in s 104.25 (1) of the HES Act. It has been reproduced above. Each of the subsections of that section are conjunctive. Therefore, if one or more of those provisions is not satisfied, an Applicant is not entitled to a re-credit of their HELP balance.
With respect to the question of whether the Tribunal as decision-maker should waive the requirement that the application be made within the specified application period, it is necessary to determine whether or not the Applicant has established the grounds that it was not possible for such application to be made within the specified time.
The construction and application of the term ‘was not possible for the application to be made before the end of that period’ has been the subject of several previous decisions of the then Administrative Appeals Tribunal. It has been construed as meaning “reasonably possible and all the circumstances”, as requiring “a very serious constraint to be placed on a person’s ability to act” [13] or that “it was unachievable or unobtainable”.[14] Another decision of that Tribunal considered that it required a finding that an application could not have been made because of some incapacity whether mental or physical, and not necessarily confined to medical conditions, to make the application at all.[15]
[13] CPNG and Secretary, Department of Education [2022] AATA 4349 at [85] and Brown and Secretary, Department of Education and Training [2015] AATA 518 at [35].
[14] TYJD and Secretary, Department of Education, Skills and Employment [2021] AATA 2184 at [27]
[15] Thomson and Secretary, Department of Education, Skills and Employment [2020] AATA 4672 at [32].
There has been extensive material lodged by the Applicant to contend that it was just not possible for him to make the application for a re-credit of his HELP balance within the application period. The grounds relied upon by the Applicant in support of this contention may be summarised as follows:
(a)The Applicant has had a long history of mental health problems. These include chronic anxiety, social anxiety which often manifests itself in avoidant behaviour when he feels overwhelmed. He had severe difficulties in the year 2016 which resulted in a hospital admission.[16] His mother and father also stated that during the relevant time, the Applicant was withdrawn and unresponsive which they considered to be part of an ongoing medical condition. It was also observed by his mother that the Applicant chose not to seek treatment or reach out for support.[17]
(b)Another ground relied upon by the Applicant was that he suffered a significant shoulder injury in August 2022.[18] A medical report from a General Practitioner who treated the Applicant for the shoulder condition dated 23 August 2022 was in evidence.[19] The Applicant stated that he was unable to drive due to the injury. He contended that over time it became progressively worse thus hindering his ability to concentrate on everyday tasks and responsibilities throughout 2023.
(c)The Applicant also contends that his Internet access was significantly hampered if not completely unavailable from time to time throughout the relevant application period.[20]
(d)The devastating impact of the 2022 floods were also relied upon. The home in which the Applicant lived experienced extensive damage if not destruction. The property was also inundated with some kind of dangerous mould or bacteria. Amongst other things, roads, bridges and other infrastructure was either destroyed or extensively damaged. He stated that recovery from such damage was a long process. One of the difficulties encountered was that it was very difficult to drive from his residence to areas where ready access to telecommunications and Internet facilities were available. A medical certificate in evidence from another treating general practitioner of the Applicant dated 17 May 2024 referred to the flooding events of February and March 2022 and the effect that it had on the Applicant. The certificate stated that it traumatised the Applicant, triggered anxiety, poor concentration insomnia and tiredness.[21]
[16] There was a significant amount of material concerning the Applicant's mental health conditions in the documentary evidence lodged with the Tribunal. It has been considered by it. By way of example there was a Medical Certificate of 30 July 2024 from a treating general practitioner, Dr Alam, which provided a summary of these conditions and their history. JTB, 218. There was also a letter from a treating psychologist, Ms Conomos, of 8 March 2016 which referred to the Applicant presenting with symptoms of anxiety with a persistent low mood and difficulty attending courses. JTB, 319. A clinical note maintained by the general practice that the Applicant has attended for many years made by Dr Alam contained a summary of the Applicant's past history and current problems. JTB, 243.
[17] JTB, 290.
[18] There was a medical report of 23 August 2022 from a general practitioner, Dr Moore, who treated the Applicant which confirmed the injury was suffered by the Applicant 28 August 2022. JTB, 279.
[19] JTB, 279.
[20] Considerable details of these outages or disruptions to Internet and telecommunications services, prepared by the Applicant, were relied upon by him. JTB, 320 to 328.
[21] JTB, 345.
Having considered the substantial evidence relied upon by the Applicant to contend that he was not able to make an application for a re-credit of his HELP balance within the application period, the Tribunal is not satisfied that it was not reasonably possible in all the circumstances, or that there was a very serious constraint on his ability to make such an application, or that it was otherwise unachievable or unobtainable.
There are several reasons for this. Firstly, there was simply no medical evidence going so far as to express an opinion that during the application period his mental health issues were so severe, or he was so affected by them as to be it was not reasonably possible in all the circumstances, or that there was a very serious constraint on his ability to make such an application or that it was otherwise unachievable or unobtainable for him to make the application concerned. Clearly had such an opinion been forthcoming, particularly from a psychiatrist, in those express terms the Tribunal might well, and probably would, have reached a different conclusion.
There is an inconsistency with the Applicant’s evidence on his capacity to make such an application during the application period. That has been addressed to some extent already with respect to his evidence concerning his belief that he had withdrawn from the relevant unit. However, the records of Endeavour reveal that he had a number of interactions with that organisation by access to the student portal using the Internet, including a specific request of one of his instructors. These acts demonstrated that he was able to communicate comparatively easily, rationally, and do whatever was required to seek a recredit of his HELP balance if he were minded to do so.
As for the Applicant’s shoulder injury, there also has not been medical evidence which establishes that it was so traumatic that he was unable to attend to seeking a re-credit of his HELP balance during the application period. One would have expected that if this were the case, a treating practitioner would have expressed such an opinion in an appropriately worded medical report. The highest that any of the medical evidence goes to is the report of Dr Alum of 30 July 2024 which stated that the injury had been a source of persistent headaches and migraines to the Applicant and that he had been unable to pursue further treatment due to prohibitive costs.[22] A clinical note recording an examination conducted by Dr Alum 4 July 2023 was in evidence.[23] That clinical note recorded that on that date there was still some pain in the right shoulder but it was slowly getting better. Such symptoms are not indicative of being so debilitating as to prevent the Applicant from completing the comparatively simple task of applying for a re-credit of his HELP balance.
[22] JTB, 218.
[23] JTB, 274.
One should also note that there was also a medical certificate signed by another treating general practitioner, Dr Girardi, of 12 March 2024.[24] Dr Girardi had seen the Applicant on that day for shoulder pain arising from the injury that occurred in August 2022. Amongst other things, that medical certificate recorded that the Applicant had been unable to work since January 2024. The contents of this medical certificate were put to the Applicant in cross-examination. His response was not particularly satisfactory, which comprised of him asking a question of the cross-examiner, presumably in an attempt to avoid having to answer the question put to him. He did not deny that he was able to work throughout 2023 as conveyed by the medical certificate from Dr Girardi. The Tribunal infers that if the Applicant was throughout 2023 able to perform some kind of paid employment or work, it seems inconceivable that he could not have applied for a re-credit of his HELP balance as required. It is not a difficult task.
[24] JTB, 340.
It is perhaps appropriate to mention at this juncture that the Respondent observed the Applicant was able to travel overseas in 2023 which was indicative of a capacity to make an application within the application period. The Applicant contended that such an assertion is misleading because the trip was family assisted and described as rehabilitative for the purposes of enabling access to an affordable regime of rehabilitation with respect to his shoulder injury. In the witness box, the Applicant stated that he was not involved in any way in arranging the trip. Whilst this might well be the case, nonetheless, undertaking overseas travel, as the Applicant did, does not occur in a vacuum. The Applicant clearly would have had to attend personally to certain basic functions for the trip to occur such as negotiating passport controls, completing customs and immigration declarations and checking in. These tasks do not seem to be in any way more challenging than it would have been for the Applicant to complete an application to re-credit his HELP balance for the applicable unit during the application period. The Tribunal is persuaded by the Respondent’s contention that being able to travel overseas during the application period is indicative of him having the ability to complete a comparatively simple task of accessing the student online portal at Endeavour seeking re-credit of his HELP balance with respect to the August 2022 BIOA111 unit .
There was some other evidence which raises doubts on the Applicant’s assertions that he was unable to seek a re-credit of his HELP balance with respect to the August 2022 BIOA111 unit. There were two Seatbelt Exemption Certificates in evidence that had been signed by the Applicant.[25] They were both obtained by the Applicant within the application period. He was probed on these in cross-examination. It was put to him that having the capacity to obtain such certificates, he was capable of attending to other administrative tasks. Whilst initially conceding he had obtained such certificates himself, his evidence shifted slightly to say that his mother had assisted him with the task, including arranging for appointments before a Justice of the Peace for the purposes of signing them. It seems that if he was able to procure the Seatbelt Exemption Certificates, with or without the assistance of his mother, there seems no reason why he would not have been able to seek a re-credit of his HELP balance with respect to the August 2022 BIOA111 unit within the application period.
[25] JTB, 352 and 353.
As for the impact of the floods on the Applicant’s capacity to seek a re-credit of his HELP balance with respect to the August 2022 BIOA111 unit within the application period, the Tribunal is not persuaded that such impact was so severe or profound, within the application period so as to make it not reasonably possible in all the circumstances, or that there was a very serious constraint on his ability to make such an application or that it was otherwise unachievable or unobtainable for him to make the application concerned. It must be viewed with a degree of realism that a considerable time span had passed since the floods, by the time that the application period had commenced. Certainly, by the time of the census date for the unit concerned and certainly, by the time of the commencement of the application period, he was well aware of the impact of those floods on him. However, notwithstanding the effect of those floods throughout the year 2022 and of course 2023, the Applicant was able to engage with Endeavour and an instructor there, as has been previously recounted in these reasons. The floods did not prevent him from doing so. Notwithstanding the floods he was able to travel overseas as previously noted and also obtain the Seatbelt Exemption Certificates. The Tribunal recognises that these tasks may have been difficult for him to undertake. However, the floods and any other issues arising from them such as the advent of mould and damage to infrastructure did not prevent him from achieving such tasks. Having done so, one cannot see why it would not have been possible for him to have access the Student Portal at Endeavour and make the requisite application. Therefore, the Tribunal cannot accept this contention by the Applicant.
As for the question of disruption to Internet and telecommunications access, the Tribunal is also not persuaded that these disruptions prevented the Applicant from making the relevant application within the application period. Much has already been touched on why this would not be the case. Those grounds are referred to and repeated. In summary they include the fact that the Applicant clearly did have the capacity from time to time to access the Internet when he needed to. He certainly did engage online with Endeavour, as has been previously mentioned. He must have done so notwithstanding the disruptions to Internet and telecommunications in his area. In his evidence he referred to travelling into a relatively nearby town, or to friends, where Internet access was available when needed. It does not seem to the Tribunal that it would have been impossible for the Applicant, to have whilst he was using the Internet in this way from time to time, to have made the application.
For all these reasons the Tribunal concludes that it should not as decision-maker waive the requirement that the application be made before the end of the application period.
Special circumstances
Having concluded that the application period for seeking a re-credit of his HELP balance with respect to the August 2022 BIOA111 unit should not be waived, the Applicant cannot satisfy the requirements of s104.25 of the HES Act. Therefore, strictly it is not necessary to consider whether or not ‘special circumstances’ (s104.25) apply to the Applicant. Nonetheless, the Tribunal will briefly address this question.
It is satisfied on the evidence before it that in any event, the Applicant could not establish that special circumstances apply to him.
The special circumstances relied upon the Applicant are in effect the same as those advanced by him in support of a claim for a waiver of the application period in paragraph 36 above.
It has been held that in undertaking the task of assessing whether special circumstances apply an Applicant’s situation as a whole should be taken into account. In doing so it is necessary to determine whether the circumstances were unusual, uncommon or abnormal and as such whether they were beyond his control.
As contended for by the Respondent there have been several previous decisions of the then Administrative Appeals Tribunal that have concluded that circumstances or facts will not be beyond a person’s control where they are aware of such circumstances prior to the census date, and therefore made a choice not to withdraw prior to such date.
Essentially, the same conclusion is reached by the Tribunal as was reached with respect to the question of waiver of the application period. It considers for the reasons previously advanced that the Applicant could have taken appropriate steps to have made an application seeking a re-credit of his HELP balance with respect to the August 2022 BIOA111 unit. Such a step was not beyond his control for the reasons that have already been explained.
It has also been touched on earlier in these reasons about the circumstances concerning the Applicant’s enrolment in the relevant unit. The Tribunal has found that the Applicant enrolled and had not withdrawn from the unit during the application period. Therefore, the Tribunal accepts the Respondent’s contention that a reasonable person in the position of the Applicant would have considered that the situation in which he found himself, namely being enrolled in the August 2022 BIOA111 unit was of his own making or by reason of his own conscious actions. Therefore, he was responsible both for enrolling in such unit and not withdrawing within the relevant application period, which the Tribunal has found for the reasons previously explained he was capable of doing.
Therefore, even if the Tribunal had been persuaded to waive the requirement that the application be made before the end of the application period, for the reasons articulated it concludes that ‘special circumstances’ do not apply to the Applicant in any event.
CONCLUSION
By reason of the foregoing, the reviewable decision is affirmed.
..................[SGD]...................
General Member R. Cameron
Dated: 13 October 2025
Date of hearing: 7 October 2025 Representative for the Applicant: Winifred Mitchinson Solicitor for the Respondent: Matthew Humphrey of Minter Ellison
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