O'Loughlin and Secretary, Department of Education - [2025] ARTA 1416

O'Loughlin and Secretary, Department of Education [2025] ARTA 1416 (12 August 2025)
Applicant/s:   ZoeO'Loughlin
Respondent:  Secretary, Department of Education
Tribunal Number:                2024/10323

Tribunal:General Member Ross
Place:Sydney
Date: 12 August 2025

Decision:The Tribunal affirms the decision under review.

....................[SGD]..............................
General Member Ross
Catchwords
EDUCATION – HECS-HELP – debt remission – whether special circumstances apply – enrolled in units at two universities – full impact not on or after census date – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Higher Education Support Act 2003 (Cth)
Cases
Drake v Minister for Immigration (1979) 24 ALR 577
Forer and Secretary, Department of Education [2023] AATA 1271
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Nacol and Secretary, Department of Education, Skills and Employment [2022] AATA 1033
Ullah and Secretary, Department of Education and Training [2018] AATA 2159
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Higher Education Support (Administration) Guidelines 2022
Statement of Reasons

On 24 November 2024, the Applicant lodged an application for review by the Tribunal of a decision by the University of Technology (UTS) made on 29 October 2024 not to remit her Higher Education Contribution Scheme – Higher Education Loan Program debt (HECS-HELP debt) for four units which are part of a Bachelor of Medical Science because the requirements for remission of HECS-HELP debt under s 36-21 of the Higher Education Support Act 2003 (Cth) (the Act) were not met (reviewable decision).
BACKGROUND
On 7 October 2023, the Applicant accepted a conditional early offer from UTS to undertake a Bachelor of Medical Science.[1]
[1] Applicant’s written submissions, page 2.
On 8 October 2023, the Applicant completed a request for a Commonwealth supported place and a HECS-HELP loan.[2]
[2] T7.
On 5 November 2023, the Applicant accepted the UTS student declaration and enrolled to undertake the following units of study in a Bachelor of Medical Science (Units):
(a)33116 – Design, Data and Decisions
(b)60006 – Scientific Perspectives for Global Issues
(c)65111 – Chemistry 1, and
(d)91161 – Cell Biology and Genetics.[3]
[3] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at [1.1] and T7.
Each unit had an Equivalent Full-Time Student Load of 0.125, a start date of 19 February 2024 and a census date of 20 March 2024.[4]
[4] Ibid at [7.1].
On 18 December 2023, the Applicant received confirmation from UTS that the eligibility requirements were met and the offer was confirmed.[5]
[5] Applicant’s written submissions, page 2.
In January 2024, the Applicant received and accepted another offer to undertake a Bachelor of Medical Science at the University of Sydney, which was the Applicant’s first choice. However, the Applicant did not withdraw from the enrolments in the Units by the census date.[6]
[6] RSFIC at page 9.
On 18 January 2024, the Applicant received invoices to her UTS email address with a reminder also sent to that address on 1 March 2024.[7]
[7] Applicant’s written submissions, page 2.
On 1 March 2024, UTS emailed the Applicant’s student and personal email accounts to advise that she will be financially liable for any subjects that she is enrolled in as at the census date.
On 20 March 2024, the Applicant received a census date reminder to her UTS email address.[8]
[8] Ibid.
On 8 July 2024, the Applicant received an academic caution to her personal email address.[9]
[9] Ibid.
On 20 August 2024, the Applicant applied to UTS for re-credit of her HECS-HELP balance in relation to HECS-HELP assistance given to her.[10]
[10] RSFIC at [1.1].
On 20 September 2024, UTS denied the Application.[11]
[11] T13.
On 9 October 2024, the Applicant requested review of the Decision.[12]
[12] T16.
On 29 October 2024, UTS made a decision on review, affirming its Decision.[13]
[13] RSFIC at [1.5].
RELEVANT LEGISLATIVE PROVISIONS
Section s 90-1(e) of the Act relevantly provides that a student is entitled to HECS-HELP assistance for a unit of study for which the student is enrolled with a higher education provider as part of a course of study if the student enrolled in the unit on or before the census date for the unit; and at the end of the census date, remained so enrolled.
Further, section s 90-1(g) of the Act relevantly provides for a student to be entitled to HECS-HELP assistance if the student has, on or before the census date, completed, signed and given to an appropriate officer of the provider a request for Commonwealth assistance in relation to the unit or, where the course of study of which the unit forms a part is undertaken with the provider, in relation to the course of study.
Section 137-5 (1) of the Act provides that a person incurs a HECS-HELP debt if the Commonwealth makes a loan to a person and uses the loan to make a payment in discharge of the person's liability to pay his or her student contribution amount for a unit of study.
Section 137-5 (3) of the Act provides that a HECS-HELP debt is taken to have been incurred by a person immediately after the census date for the unit. Under s 137-5 (4) a person's HECS-HELP debt in relation to a unit of study is taken to be remitted if, relevantly, section 97-25 applies to the person.
Section 97-25 of the Act provides that a higher education provider must re-credit a person’s HELP balance with an amount equal to the amounts of HECS-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
(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 97 – 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 97 – 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.
Section 97-30 of the Act provides special circumstances apply 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 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.
Section 97-30 (2) provides that if the Higher Education Support (Administration) Guidelines 2022 (Administration Guidelines) specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraphs 36-21(1)(a), (b) or (c), any decision by the provider must be in accordance with the guidelines.
Section 36-21 (2) provides the Administration Guidelines may specify circumstances in which a higher education provider will be satisfied that special circumstances apply to a person. A note to s 36-21 informs readers that the guidelines made for the purpose of that section also have effect for the purposes of 97-30 (2).
Part 3 of the Administration Guidelines specifies the circumstances in which a higher education provider will be satisfied that special circumstances apply to a person. It states:
12 Circumstances beyond a person's control
For the purposes of paragraphs 36-13(3)(a) and 36-21(1)(a) of the Act, a higher education provider will be satisfied that a person's circumstances are beyond that person's control if a situation occurs which the provider reasonably considers is not due to the person's action or inaction, either direct or indirect, and for which the person is not responsible.
The situation referred to in subsection (1) must be unusual, uncommon or abnormal.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
13 Circumstances that did not make full impact until on or after the census date
For the purposes of paragraphs 36-13(3)(b) and 36-21(1)(b) of the Act, a higher education provider will be satisfied that a person's circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person's circumstances occur:
(a) before the census date, but worsen after that date;
(b) before the census date, but the full effect or magnitude did not become apparent until after that date; or
(c) on or after the census date.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
14 Circumstances that make it impracticable for the person to complete the requirements
(1) For the purposes of paragraphs 36-13(3)(c) and 36-21(1)(c) of the Act, a higher education provider will be satisfied that a person's circumstances make it impracticable for the person to complete the requirements for the unit of study if the person undertook, or was to undertake, the unit in the following kinds of circumstances:
(a) medical circumstances – for example, where a person's medical condition has changed to such an extent that he or she is unable to continue studying;
(b) family or personal circumstances – for example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies;
(c) employment related circumstances – for example, where a person's employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person's control; or
(d) course related circumstances – for example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.
The requirements for a unit of study referred to in subsection (1) are that the
person:
(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.
Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
ISSUE FOR DETERMINATION
The issue for determination by the Tribunal is whether it can be satisfied that special circumstances exist that entitle the Applicant to have her HECS-HELP debt with respect to the Units remitted.
SUBMISSIONS OF THE PARTIES
Applicant
The Applicant submits that she did not access the UTS portal as she never fully completed the acceptance process believing she was not a UTS student.[14] The Applicant also submits that she was under the honest and reasonable belief that her UTS enrolment had been superseded by her University of Sydney enrolment.[15]
[14] Ibid, page 3.
[15] Ibid, page 4.
The Applicant submits that UTS’ actions, inactions and omissions have resulted in her incurring a debt and these actions include:
(a)she was not warned in the email confirming that the UTS eligibility requirements were met of the consequences of accepting multiple offers from elsewhere and failing to withdraw
(b)UTS did not have a process in place to check that she was not attending UTS including attending compulsory lectures and tutorials
(c)she was not provided any information in relation to her enrolment in the Units at UTS to her personal email address
(d)she never accessed the UTS student system, and therefore did not see any emails sent to her UTS email account, and
(e)she assumed that by accepting another offer of study, the UTS offer would be voided.
The Applicant submits that she meets the three-pronged test for special circumstances:
(a)the circumstances were beyond her control due to her inexperience with the higher education system and she was unaware that she was still enrolled at UTS with UTS greatly contributing to that unawareness
(b)the circumstances did not make their full impact until after the census date in July 2024 when she became aware that she was still enrolled in the Units after receiving the academic caution, and
(c)the circumstances made it impracticable to complete the requirements because she was unaware of still being enrolled in the Units and undertaking a full-time ‘demanding’ course at Sydney University meant she could not attend the Units.
Respondent
The Respondent submits that the Applicant does not meet the three-pronged test for special circumstances:
(a)the circumstances were within the Applicant’s control. The Respondent submits that the Administration Guidelines require circumstances to be 'unusual, uncommon or abnormal' in order to be considered beyond the person's control, and state that this criterion will be satisfied 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’.[16]
[16] RSFIC at [13.1].
The Respondent submits that having taken steps to enrol in the Units and accept that she would be bound by UTS student rules; that her UTS email address would be used for communications with UTS; and that she was responsible for checking her account accordingly, the Applicant was or ought to have been aware of:
(i)her obligation to withdraw from the Units prior to the census date in order to avoid incurring a HELP debt
(ii)her obligation to check her UTS email account regularly, and
(iii)the criteria required to be satisfied in order to demonstrate special circumstances.
The Respondent further submits that it was not beyond the Applicant's control to:
(i)verify her enrolment status at UTS at any time after she had enrolled in the Units
(ii)check what the effect of her enrolment at an alternative university was on her enrolment in the Units at UTS
(iii)check whether it was possible to be enrolled in multiple HECS-HELP assisted courses, and
(iv)accordingly, discontinue the Units of study with UTS by the census date.[17]
(b)The Respondent submits that the Applicant’s circumstances did not relevantly change after the census date.[18] The Respondent submits that the only aspect of the Applicant’s circumstances that changed after the census date was that she became aware that she remained enrolled in the Units and had incurred the debt as a result.[19]
(c)The Respondent submits that it has not been established that her circumstances made it impracticable for her to complete the requirements of the Units. The Respondent refers to previous Tribunal decisions which have found:
(i)that the meaning of ‘impracticable’ means ‘not able to be done’ – Zabaneh and Secretary, Department of Education and Training[20]
(ii)problems students encounter can make it more difficult to succeed but do not make it impracticable to continue – Ullah and Secretary, Department of Education and Training[21]
(iii)the onus of complying with the relevant requirements was on the Applicant, and that the Applicant's misunderstanding did not make it impractical for the Applicant to comply with the course requirements – Nacol and Secretary, Department of Education, Skills and Employment[22]
(iv)a conclusion that it would be difficult for a student to complete the requirements of the units is not sufficient to establish that the circumstances were such that it was impracticable for this to be done – Georgiou and Secretary, Department of Education and Training[23]
(v)while it is very difficult for a student to complete the requirements of the units in circumstances where they are unaware that they are still enrolled in a course, in considering impracticability, the bar set by decision-makers for the inability of a student to complete units is very high – Forer and Secretary, Department of Education.[24]
[17] Ibid at [13.6] and [13.7].
[18] Ibid at [14.1].
[19] Ibid at [14.2].
[20] [2016] AATA 569.
[21] [2018] AATA 2159.
[22] [2022] AATA 1033.
[23] [2019] AATA 170.
[24] [2023] AATA 1271.
CONSIDERATION
In order for a re-crediting of the Applicant’s HECS-HELP balance, the Tribunal is required to be satisfied that special circumstances within the meaning of s 97-30 apply to the Applicant.
The special circumstances the Applicant is claiming are outlined above at [28].
Were the circumstances beyond the Applicant’s control?
The Administration Guidelines state that a person's circumstances are beyond that person's control if a situation occurs which the provider reasonably considers is not due to the person's action or inaction, either direct or indirect, and for which the person is not responsible.[25] The Administration Guidelines further state that the situation must be unusual, uncommon or abnormal.[26]
[25] Administration Guidelines at [12].
[26] Ibid.
The Applicant’s main submission simply put is that the circumstances were beyond her control as she was unaware that she was still enrolled at UTS and that UTS had greatly contributed to that unawareness.[27]
[27] Applicant’s submission, page 7.
At the hearing the Applicant explained further that she was operating under the assumption or misconception that her acceptance of the University of Sydney’s offer automatically cancelled her lower preference offer from UTS. The Applicant also explained that due to her age and inexperience she could not have been expected to fully understand the administrative consequences of dual acceptance of offers and enrolments.
In Forer and Secretary, Department of Education[28] (Forer), a matter very similar to this matter, the Tribunal found that circumstances will not be beyond an applicant’s control where a higher education provider fails to communicate with the Applicant by any means other than the provider’s student email address and where the Applicant was unaware that they could be enrolled in two universities at the one time.[29]
[28] [2023] AATA 1271.
[29] Forer and Secretary, Department of Education [2023] AATA 1271 at [46] and [51].
I find that the evidence does not support that the circumstances were beyond the control of the Applicant. The evidence shows that the Applicant:
(a)On 8 October 2023, as part of her enrolment, submitted a Commonwealth Assistance Form to receive HECS-HELP assistance for the Units and declared that by submitting the form she understood that she has an obligation to repay through the ATO the amount that the Commonwealth had loaned her and that her debt to the Commonwealth will remain if she did not withdraw or cancel her enrolment before the census date.[30] She also ticked the box on the form to declare that she had read the Commonwealth supported places and HECS-HELP information booklet which provides information regarding withdrawing from study including in situations where a student is enrolled with more than one university.[31]
(b)On 2 November 2023, the Applicant completed a Student Declaration where she accepted that her UTS email address will be used for communications with UTS and that she was responsible for checking her UTS email account regularly.[32]
(c)On 1 March 2024 at 11:01 am, UTS emailed the Applicant’s student and personal email accounts to advise that she will be financially liable for any subjects that she is enrolled in as at the census date.[33] The email advised her to check that the subjects in her student administration were correct. At the hearing evidence was tendered which showed that the Applicant opened the email sent to her personal email account at 11:03 am.
(d)On 6 March 2024, UTS wrote to the Applicant using her UTS email address regarding the approaching census date in respect of the Units.[34]
[30] T11C
[31] ST1, page 20.
[32] T3, page 30.
[33] ST2.
[34] ST3.

The Tribunal appreciates that the Applicant was new to the process of accepting university offers and enrolling in subjects. However, accepting the early offer did not commit the Applicant to enrolling in the Units. She could have waited, as many students do, until all offers have been received to then make a decision. Instead, the Applicant took the deliberate step of enrolling in the Units (presumably after the HSC exam period ended) and then took further steps to accept the offer she received from Sydney University and enrol in units at that university.
No evidence was provided of circumstances that were ‘unusual, uncommon or abnormal’ which prevented the Applicant from accessing the UTS account that was provided to her on accepting the offer of study and unenrolling in the Units before the census date. Also, no evidence was provided for why the Applicant was operating under the assumption that her enrolment in the Units had somehow been voided by her enrolling in units at a different university. Further, no evidence was provided to support the Applicant’s belief that she ‘never fully completed the acceptance process believing she was not still a UTS student’.[35]
[35] Applicant’s submission, page 3.
While it could be considered unusual that a person would enrol in almost identical units at two different universities (as opposed to accepting multiple offers), the Tribunal is unable to conclude that it was beyond the Applicant’s control to rectify this situation by withdrawing from the Units and thereby avoiding financial liability.
Circumstances that did not make their full impact until on or after the census date
The Administration Guidelines state that a person’s circumstances will not make their full impact on a person if the circumstances occur:
(a)before the census date, but worsen after that date
(b)before the census date, but the full effect or magnitude did not become apparent until after that date, or
(c)on or after the census date.
The Applicant’s submission is that the circumstances did not make their full impact until after the census date in July 2024 when she became aware that she was still enrolled in the Units after receiving the academic caution.
I accept the Respondent’s submission that the actual circumstances did not change after the census date.[36] The Applicant continued to be enrolled in units both at UTS and the University of Sydney and the Applicant confirmed at the hearing that she was attending the latter but not the former university during this time. The impact before the census date of the Applicant being enrolled in the Units was that she had in effect a contingent liability which incurred after the census date as a result of inaction. Both before and after the census date, the terms of the Applicant’s loan agreement with the Commonwealth remained the same. As the Respondent points out, what changed after the census date was that the Applicant became aware that she had incurred a debt consistent with that agreement.
Did the circumstances make it impracticable for the Applicant to complete the requirements of the Units?
[36] RSFIC at [14.2].
In Forer, the Tribunal found that it would have been very difficult for the Applicant to complete the requirements of the units given that the Applicant was unaware he was still enrolled.[37]
[37] At [57].
The Administration Guidelines state that the requirements of the unit are that the person:
(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.
On the evidence, I am unable to conclude whether the Applicant was aware or unaware that she was still enrolled in the Units:
(a)in the event the Applicant was unaware that she was still enrolled, she had no awareness of the need to complete these requirements, so arguably it was not possible for her to do so,
(b)in the event that the Applicant was aware, arguably it would not have been possible to complete these requirements because she had almost identical concurrent requirements to complete in relation to her units at Sydney University. As the Applicant asserted at the hearing, among other things, there would have been significant scheduling clashes.
I find there is also insufficient evidence to conclude on this issue of practicability either way.
However, I have found based on the evidence that the Applicant’s circumstances:
(a)were not beyond her control, and
(b)made their full impact before the census date.
Although I have not made a finding on the third limb of the test, all limbs of the three-limb test need to be satisfied for special circumstances to exist.
CONCLUSION
It is unfortunate that this is a case where only one possible decision is open to the Tribunal on the facts as established by the evidence and applying the law to those facts. The Applicant’s father has asked that I take into account community values or community expectations. In short, he considers his daughter’s situation does not pass the ‘pub test’. Reference was also made to the Tribunal pursuing its objective of providing an independent mechanism for review that is fair and just.[38]
[38] Section 9 Administrative Review Tribunal Act 2024 (Cth).
The Tribunal’s objective is also to make the correct or preferable decision in relation to a review. It can be the case that the use of the word ‘or’ instead of ‘and’ in ‘correct or preferable’ can give the impression that the Tribunal can make a preferable decision if it would result in what could be regarded as a fair or just outcome even though according to law it would not be correct. However, this is not the case. The Court has clearly established that decisions must always be correct on the facts as found and the applicable law, but in a situation where discretion exists and there is more than one possible decision that decision must be the preferable one.[39] In this case, like in many cases before the Tribunal, the exercise of discretion is not involved. I have been presented with a binary choice between a correct decision and an incorrect one.
[39] Drake v Minister for Immigration (1979) 24 ALR 577; Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
That being the case the Tribunal affirms the decision under review.

Date(s) of hearing: 30 July 2025

Applicant: In person

Counsel for the Respondent: Emma Letcher-Boldt

Solicitors for the Respondent: Clayton Utz
Exhibits
T1 – T-documents
T2 – Supplementary T-documents
R1 RSFIC
R2 RSFIC (corrected RSFIC)

Date(s) of hearing:	30 July 2025
Applicant:	In person
Counsel for the Respondent:	Emma Letcher-Boldt
Solicitors for the Respondent:	Clayton Utz