Peters and Secretary, Department of Education, Skills and Employment - [2021] AATA 3800

Peters and Secretary, Department of Education, Skills and Employment [2021] AATA 3800 (18 October 2021)
Division:GENERAL DIVISION
File Number: 2020/1951
Re:Daniel Peters
APPLICANT

AndSecretary, Department of Education, Skills and Employment
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:18 October 2021
Place:Melbourne

Each decision the subject of review is affirmed.
..................[SGD]......................................................
Senior Member C. J. Furnell
Catchwords
HIGHER EDUCATION – HECS-HELP balance – application for remission of HECS-HELP debt – chronic migraine – vestibular migraine – where applicant withdrew from units after the census date – whether requirement that remission application be made before end of application period can be waived – whether special circumstances – whether beyond applicant’s control – whether circumstances made their full impact after the census dates – whether circumstances made it impracticable for applicant to complete requirements of units – decisions under review affirmed
Legislation
Administration Guidelines 2012 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
Cases
Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54
Apted and Commissioner of Taxation (Taxation) [2020] AATA 5139
Bow and Secretary, Department of Education [2020] AATA 114
Brown and Secretary, Department of Education and Training [2015] AATA 518
Bushell v Repatriation Commission (1992) 175 CLR 408
Commissioner of Taxation v Apted [2021] FCAFC 45
Heath and Secretary, Department of Education, Skills and Employment [2021] AATA 2280
HMZP and Secretary, Department of Education [2015] AATA 666
Khan and Secretary, Department of Education [2019] AATA 3609
Lehtonen and Secretary, Department of Education and Training [2019] AATA 5167
Montenegro v Secretary, Department of Education [2020] FCAFC 210
Sadek and Secretary, Department of Education [2017] AATA 1399
Thomson and Secretary, Department of Education, Skills and Employment [2020] AATA 4672
Tralongo and Secretary, Department of Education [2016] AATA 393
Ullah and Secretary, Department of Education and Training [2018] AATA 2159
Waraich v Minister for Home Affairs [2021] FCAFC 155
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
Secondary Materials
LexisNexis, Halsbury’s Laws of Australia (online)
REASONS FOR DECISION
Senior Member C. J. Furnell
18 October 2021

The applicant applied for remission of his “HECS-HELP” debt in relation to a number of units of study, with respect to each of which:
(a)he had been enrolled as a Commonwealth supported student with Griffith University via Open Universities Australia;[1] and
(b)he did not complete the requirements for the unit in the study period in which he undertook, or was to undertake, the unit.
[1] See, for example, notice of the applicant’s HELP-HECS debt in relation to two units of study in which he had enrolled in study periods 3 and 4 of 2017 at T8, p.76 and T11, p.79.
The debt of the applicant in relation to each relevant unit of study would have been remitted if Griffith University had determined that s 36-20 of the Higher Education Support Act 2003 (the Act) applied to the applicant.[2]
[2] Act, s 137-5(4).
Indeed, the applicant’s debt in relation to other units of study had been remitted. In this regard, the University had made such determinations in relation to two units of study in which the applicant had been enrolled in study period 4 of 2016,[3] two units of study in which the applicant had been enrolled in study period 1 of 2017[4] and two units of study in which the applicant had been enrolled in study period 2 of 2017.[5]
[3] Email to the applicant of 13 April 2017.
[4] T1, p.10 (email to the applicant of 1 June 2017).
[5] Email to the applicant of 4 September 2017.
However, Griffith University decided that s 36-20 does not apply to the applicant[6] in relation to units of study in which he had enrolled in study period 3 of 2017[7], study period 4 of 2017,[8] study period 2 of 2018[9] and study period 2 of 2019.[10] Each such decision was confirmed on a review conducted at the request of the applicant.[11]
[6] Each such decision constituted a reviewable decision: s 206-1 of the Act.
[7] T30, p.183.
[8] T31, p.185.
[9] Ibid.
[10] T34, p.205.
[11] T32, p.188; T36, p.209; T38, p.220. See s 209-10 of the Act.
The applicant applied to the Tribunal for review of those decisions.[12]
[12] T1; s 212-1 of the Act.
I have decided to affirm them for the reasons which follow.
LEGISLATIVE CONTEXT
A person incurs a HECS-HELP debt if a loan is made to the person under s 96-1 or s 96-2 of the Act[13] and the amount of the loan is used in or towards discharge of the person’s liability to pay a student contribution amount for a unit of study.[14]
[13] Those sections concern amounts paid on behalf of Commonwealth supported students to higher education providers in or towards discharge of the students’ liability for the contribution amount in respect of units of study in relation to which they are enrolled.
[14] Act, s 110-1.
The debt is incurred immediately after the census date of the relevant unit.[15]
[15] Act, s 137-5(3).
As already mentioned, however, a person’s HECS-HELP debt in relation to a unit of study is taken to be remitted, if, for example, s 36-20 of the Act is determined to apply to the person.[16]
[16] Act, s 137-5(4): remission might also occur in presently irrelevant circumstances involving higher education provider default or in the context of a failure to provide a tax file number.
A higher education provider must determine that the section applies to a person if certain requirements are met.
One of the requirements to be so met is that the relevant higher education provider (or the Tribunal standing in its shoes) is satisfied that special circumstances apply to the person.
Special circumstances will, however, only apply to a person if the relevant higher education provider (or the Tribunal standing in its shoes) is satisfied that circumstances apply to the person that:
(a)are beyond the person’s control;
(b)do not make their full impact on the person until on or after the census date for the relevant 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.[17]
[17] Act, s 36-21(1).
A decision as to whether special circumstances apply to a person “must be in accordance with” certain administration guidelines[18] which may specify (and which, in fact, do specify) circumstances in which a higher education provider will be satisfied that they do apply.[19]
[18] Act, s 36-21(2): Guidelines made under s 238-10 of the Act, the current version of which are reflected in an instrument entitled Administration Guidelines 2012 (Cth) (the Guidelines).
[19] Act, s 36-21(2).
The requirement that a decision as to whether special circumstances apply to a person be made in accordance with the Guidelines means that “…what is required is that those Guidelines themselves become a substitute regime which is to be complied with.”[20] The Guidelines form “…a part of the statutory scheme that conferred, defined and conditioned the decision-maker’s powers…”.[21]
[20] Montenegro v Secretary, Department of Education [2020] FCAFC 210 at [25] per Flick J.
[21] Ibid at [64] per Charlesworth J.
Under the Guidelines, a higher education provider will be satisfied that the circumstances which apply to a person:
(a)are beyond the person’s control if an unusual, uncommon or abnormal 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;[22]
(b)did not make their full impact on the person until on or after the census date for the relevant unit of study if the person’s circumstances occur before the census date but worsen after that day, occur before the census date but their full effect or magnitude does not become apparent until on or after that day, or occur on or after the census date;[23]
(c)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, amongst other things, “medical circumstances” occur which, for example, involve a person’s medical condition having changed to such an extent that he or she is unable to continue studying.[24]
[22] Guidelines, 3.5.
[23] Guidelines, 3.10.
[24] Guidelines, 3.15.1.
The Guidelines go on to outline when a person will be considered to be unable to complete the requirements for a unit. This will be the case when the person concerned 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 the person’s compulsory course requirements;
(b)complete the required assessable work;
(c)sit the required examinations; or
(d)complete any other course requirements because of the person’s inability to do any of the foregoing.[25]
[25] Ibid.
The requirements that must be met before it becomes necessary that a determination under s 36-20 be made in relation to a person and, by extension, before the person’s HECS-HELP debt in relation to a unit of study can be taken to be remitted, include a requirement that the person concerned have applied in writing for remission of that debt and either:
(a)the remission application is made before the end of the “application period” determined under s 36-22 of the Act; or
(b)the higher education provider waives the requirement that the remission 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.[26]
[26] Act, s 36-20(f).
In a context where, as here,[27] there has been no withdrawal of enrolment in respect of a unit of study, the application period under s 36-22 in relation to the unit is 12 months after the end of the period during which the applicant for remission undertook or was to undertake the unit.
[27] See T5, p.60.
FACTUAL CONTEXT
The applicant did make written application for remission of his HECS-HELP debt in relation to units of study for which he enrolled in study period 3 of 2017, study period 4 of 2017, study period 2 of 2018 and study period 2 of 2019.[28]
[28] Each application was expressed to be an application for withdrawal due to medical circumstances and was taken to include “the consideration of student learning entitlement and/or remission of HELP debt”. See, for example, T31, p.185.
In relation to study period 3 of 2017, his application was made on 12 December 2018.[29] It applied to both units in which he had enrolled in that period on 12 August 2017.[30] The census date of those units was 18 September 2017.[31] The period in which the applicant was to undertake the relevant units ended on 26 November 2017.[32] Hence, the “application period” in relation to the relevant units of study expired on 26 November 2018. The applicant did not submit any assessment material in relation to either unit.[33]
[29] T28, p.134.
[30] T5, p.60.
[31] T7, p.75.
[32] T5, p.60.
[33] T24, p.119; T25, pp. 124-5.
In relation to study period 4 of 2017, the applicant’s remission/withdrawal application was made on 13 December 2018.[34] It applied to both units in which he had enrolled in that period on 19 November 2017.[35] The census date of those units was 18 December 2017.[36] The applicant did not submit any assessment material in relation to either unit.[37]
[34] T29, p.159.
[35] T5, p.60.
[36] T7, p.75.
[37] T24, p.119; T25, p.125.
In relation to study period 2 of 2018, the applicant’s remission/withdrawal application was also made on 13 December 2018.[38] It applied to both units in which he had enrolled in that period on 9 May 2018.[39] The census date of those units was 18 June 2018.[40] The applicant did not submit any assessment material in relation to either unit.[41]
[38] T29, p.159.
[39] T5, p.60.
[40] T15, p.97.
[41] T24, p.120; T25, p.125.
In relation to study period 2 of 2019, the applicant’s remission/withdrawal application was made on 8 July 2019.[42] It applied, however, to one only of the two units in which he had enrolled in that period on 4 December 2018.[43] The census date of those units was 17 June 2019.[44] No assessment was submitted by the applicant in relation to the unit to which the application applied.[45] The applicant received a pass grade in relation to the other unit in which he enrolled in the study period (International Journalism).
[42] T33, p.194.
[43] T5, p.60.
[44] T20, p.115.
[45] T25, p.125.
In the December 2018 applications, the applicant noted that he had, “for the last few years”, been battling a particular medical condition, vestibular migraine, the primary symptoms of which are “daily dizziness and vertigo, fatigue and chronic headache”. The condition was said to have impacted his daily life and to be one which passes “after a certain amount of time (often 5 years or so).”[46] In the July 2019 application, the applicant referred to “the symptoms of my ongoing vestibular migraine condition” and noted that they could be triggered by spending too much time online.[47] In his response in October 2019 to the University’s decision on review, the applicant again noted that his condition had been ongoing and had been present “for the last two years.”[48]
[46] T28, p.134 and T29, p.159.
[47] T33, p.194.
[48] T39, p.223.
Griffith University’s decision to refuse the applicant’s remission application (by deciding that s 36-20 did not apply to the applicant) in relation to:
(a)study period 3 of 2017 was based on the premise that the applicant’s circumstances “were not deemed to be beyond your control”, that they “had in fact made their full impact prior to the census date” and that they “did not make it impracticable for you to complete the requirements for the course during this period of study”;[49]
(b)each of study periods 4 of 2017 and 2 of 2018 was based on the premise that the applicant’s circumstances “had in fact made their full impact prior to the census date” and that they “did not make it impracticable for you to complete the requirements for the course during this period of study”;[50]
(c)study period 2 of 2019 was based on the premise that the applicant’s circumstances “had in fact made their full impact prior to the census date.”[51]
[49] T30, p.183.
[50] T31, p.185.
[51] T34, p.205.
According to the University, none of the medical material submitted by the applicant in support of his applications specified that his condition worsened after any of the relevant census dates.[52]
[52] See, for example, T29, p.163 and T33, p.196. See also email of 16 July 2019 at T32, p.187.
That material included various letters from medical practitioners corroborating his statements that he suffered from migraines, dizziness and vertigo and that his symptoms interfered with his capacity to complete units of study. The applicant’s general practitioner, Dr Abdelmalek, stated in February 2017 that the applicant suffered dizziness “for few months, imbalance…”[53] and, in March 2017, that the applicant suffered severe dizziness since 29 November 2016.[54] In February 2019, he stated that the applicant suffered from chronic migraine and dizziness.[55] In a letter of July 2019, Dr Eller of Monash Health’s neurology department stated that he had been seeing the applicant since January 2018, that headaches “and prominent vestibular symptoms with mixed anxiety have been intrusive throughout to a lesser or greater degree” and that migraine, vertigo and anxiety can “on a given day” make work “effortful, if not impossible.”[56] In a letter of December 2020, Dr Eller stated that the applicant’s symptoms began in the second half of 2016, can vary “day by day”, can be “extremely intrusive” and can “preclude his ability to work”.
[53] T28, p.149.
[54] T28, p.147.
[55] T32, p.189.
[56] T36, p.212.
This material suggests that the symptoms of the applicant’s condition were ongoing and persistent, albeit that they fluctuated in severity. The applicant had, as at December 2018, been “battling”[57] the condition for a few years, in which time it had been affecting his daily life. While the applicant’s symptoms could vary day by day, at least in the period January 2018 to July 2019, those symptoms had been “intrusive throughout to a lesser or greater degree”.[58]
[57] T1, p.8; T28, p.134; T7, p.75.
[58] T36, p.212.
The suggestion that the applicant’s symptoms, while fluctuating in severity, had been ongoing and persistent is reinforced when regard is had to material produced under summons.
That material establishes that the applicant began to experience symptoms of his condition in November 2016.[59] In September 2017, the applicant was said to have been disabled by chronic dizziness “for the last 9 months”, been troubled by “persistent feelings of dizziness and disequilibrium” and experienced frequent headaches.[60] In February 2018, his condition was described as chronic migraine with prominent vestibular symptoms. Those symptoms were then said to have been “persistent”, at least in the period from December 2016 to February 2018.[61] In May 2018, Dr Eller stated that he was convinced that the applicant suffered from chronic migraine, the applicant having reported a history of suffering four severe headaches in March 2018 and six in April 2018.[62] Based on the applicant’s diary, he was said by Dr Eller to experience some sort of head discomfort around 16 days a month.[63] While in February 2019 the applicant’s condition was thought to be improving (he was then experiencing about six headache days per month),[64] in May 2019, his headaches were simply described as “terrible”, albeit he was still managing to work part time.[65]
[59] SD1, p.71 (letter of Dr Tan of 14 March 2017).
[60] SD1, p.67 (letter of Dr Waterson of 7 September 2017).
[61] SD1, p.145 (letter of Dr Eller of 1 February 2018).
[62] SD1, p.142 (letter of Dr Eller of 3 May 2018).
[63] SD1, p.140 (letter of Dr Eller of 28 August 2018).
[64] SD1, p.132 (letter of Dr Eller of 14 February 2019).
[65] SD1, p.130 (letter of Dr Eller of 9 May 2019).
QUESTIONS IN ISSUE
The underlying question in issue in this proceeding is whether s 36-20 applies to the applicant in relation to units of study in which he had enrolled in study period 3 of 2017, study period 4 of 2017, study period 2 of 2018 and study period 2 of 2019.
The respondent concedes that all the requirements to determine that s 36-20 so applies are met, with the exceptions that:
(a)in relation to study period 3 of 2017, the respondent submits that the requirement concerning the time in which to make a remission application was not met; and
(b)in relation to all relevant study periods, the respondent submits that the requirement that special circumstances apply to the applicant was not met.[66]
[66] Respondent’s Statement of Facts, Issues and Contentions of 17 May 2021 (R SFIC) at [36].
I turn now to address each of those submissions.
Timing of application in relation to study period 3 of 2017?
As previously mentioned, in relation to study period 3 of 2017, the applicant’s remission application was made on 12 December 2018.[67] By then, the 12-month application period had expired, noting that the period in which the applicant was to undertake the relevant units ended on 26 November 2017.[68]
[67] T28, p.134.
[68] T5, p.60.
Accordingly, a determination cannot be made that s 36-20 applies to the applicant in relation to the two units of study in which he enrolled in study period 3 of 2017 unless the requirement that the remission application be made before the end of the application period is waived on the ground that it would not be, or was not, possible for the application to have been made before the end of that period.[69]
[69] Act, s 36.20(1)(f).

At the hearing of this proceeding, both parties accepted that Griffith University had purported to grant such a waiver in relation to study period 3 of 2017 albeit that no evidence of the waiver was before me.
The respondent nevertheless challenges the decision by Griffith University to grant that waiver.
In the context of that challenge, the first issue to consider is whether I have jurisdiction to consider it. I find that I do.
The decisions under the Act which are reviewable by the Tribunal are not expressed to include a decision of the type which the respondent now seeks to challenge. Nevertheless, I find that it is a decision which I can review. I can do so in the context of my review of a decision which the Tribunal is expressly empowered to review, being the decision that

s 36-20 did not apply to the applicant in relation to the units of study in which the applicant had enrolled in study period 3 of 2017.[70]
[70] Act, s 206(1).
The University’s decision to waive the requirement that the relevant remission application be made before the end of the applicable application period was simply an element of the University’s reviewable decision that s 36-20 did not apply to the applicant in relation to the relevant units of study. This is reflected in the fact that the power to grant the waiver is found in the section under which the reviewable decision was made (s 36-20), not in some discrete provision which could potentially apply to a variety of decisions under the Act.[71] The waiver provision is expressed “in the same statutory breath” as that which expresses the power to make the reviewable decision.[72]
[71] Apted and Commissioner of Taxation (Taxation) [2020] AATA 5139 at [62] and, on appeal, Commissioner of Taxation v Apted [2021] FCAFC 45 at [96].
[72] Apted and Commissioner of Taxation (Taxation) [2020] AATA 5139 at [65].
Even if, however, it is wrong to conclude that the University’s decision to grant the waiver is an element of the broader reviewable decision under s 36-20, the Tribunal can nevertheless exercise the discretion to grant or refuse the waiver by reason of s 43(1) of its constituent legislation. That provision empowers the Tribunal, for the purposes of reviewing the University’s decision under s 36-20, to exercise powers conferred on Griffith University by the Act.[73] One such power is the power to waive the requirement to have made a remission application before the end of the application period.
[73] Commissioner of Taxation v Apted [2021] FCAFC 45 at [89]. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) gave to the Tribunal all the powers that the Minister had under s 34(2) of the Citizenship Act 2007 (Cth) and required the Tribunal ‘to arrive at the correct or preferable decision in the case before it according to the material before it’”: Waraich v Minister for Home Affairs [2021] FCAFC 155 at [3] citing Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 (per Brennan J).
I turn now to the nature of the challenge to the grant of the relevant waiver. The respondent submits that, in the circumstances, the only ground on which the waiver may be granted is not made out in the circumstances. According to the respondent: “there is no evidentiary basis on which to conclude that it was not possible for the application to be made before the end of that period.”[74]
[74] R SFIC [44].
I accept that submission.
A relevant waiver may only be granted on the ground that it would not be, or was not, possible for the applicant’s relevant remission application to have been made before the end of the application period, that is, before 26 November 2018.
As contended by the respondent, for that not to have been possible would have required “…a very serious constraint to be placed on…” the applicant’s ability to complete and lodge the relevant remission application.[75] It would be necessary for me to find that the “… 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.”[76]
[75] Brown and Secretary, Department of Education and Training [2015] AATA 518 at [35]. See also Lehtonen and Secretary, Department of Education and Training [2019] AATA 5167 at [66] and Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at [24].
[76] Thomson and Secretary, Department of Education, Skills and Employment [2020] AATA 4672 at [32].
I am not satisfied that the applicant was precluded by reason of some incapacity from being able to make the relevant remission application before 26 November 2018 or that there was a very serious constraint on his ability to do so. Indeed, on the material before me, I am satisfied that he could have made the application before 26 November 2018. He was familiar with the process. He had already made successful remission applications in respect of units of study in which he had enrolled in study periods 1 and 2 of 2017. At the hearing of this proceeding, the applicant suggested that he might have had difficulty contacting the University as he might have been bed-bound. I note, however, that in the period after the census date in respect of the units of study in question and before 26 November 2018, the applicant had managed to interact with the University on a number of occasions by enrolling in units of study for study period 4 of 2017 (on 19 November 2017), study period 2 of 2018 (on 9 May 2018), study period 3 of 2018 (on 9 May 2018) and study period 4 of 2018 (on 27 August 2018).[77]
[77] T5, p.60.
Accordingly, the ground on which there could be a waiver of the requirement for the applicant to have made, before the end of the application period, his relevant remission application is not made out. As the applicant did not satisfy that requirement and as it could not be waived, s 36-20 does not apply to the applicant in relation to the units of study in which he enrolled in study period 3 of 2017.
Special circumstances?
As is apparent from his remission applications, the circumstances which the applicant submits constitute “special circumstances” comprise, or at least include, his vestibular, chronic, migraine condition and its associated symptoms, as described earlier (the “applicable medical circumstances”).
Before addressing the issue of whether the requirement for there to be special circumstances in the context of each decision the subject of review is met, I should first address a broader submission of the applicant.
As I understood it, the submission was, in effect, that the respondent was precluded from denying that the applicable circumstances constituted special circumstances in relation to the relevant units of study in which the applicant had enrolled in and after study period 3 of 2017 because it had been accepted, without challenge, that the applicable medical circumstances constituted special circumstances in relation to units of study in which the applicant had enrolled in several study periods before study period 3 of 2017.
I reject that submission.
A decision to determine that s 36-20 applies or to decide that it does not apply to a person is one made in relation to a particular unit or units of study in which the person had enrolled at a particular time. As is apparent from the circumstances that must subsist before it can be said that special circumstances apply (as outlined at [12]), and like each other requirement to be met in order for a higher education provider to become obliged to determine that s 36-20 applies, the special circumstances requirement is unit of study specific.
Being unit of study specific, a decision that special circumstances apply in relation to a particular unit or units of study in which a person has enrolled in a study period does not preclude a different decision being made in relation to another unit or units of study in which the person has enrolled. For instance, enrolment in that other unit (or those other units) of study might have been in a later study period and the circumstances applicable in or in relation to that study period might be perceived to reflect a material change from those perceived to apply in or in relation to an earlier study period.
Accordingly, a decision that the applicant’s circumstances were special in relation to certain units of study does not carry with it an implied representation that his circumstances would be considered to be special in relation to other units of study. Absent such a representation, Griffith University (and the Tribunal standing in its shoes) cannot be estopped from denying that the applicant’s circumstances are special in relation to certain units of study even though it has been decided that they were special in relation to other units of study (noting that the making of a representation is a fundamental element of an estoppel[78]).
[78] LexisNexis, Halsbury’s Laws of Australia, (online at 11 October 2021) ‘10 Administrative Law, V Judicial Review’ [10-13110].
I note, in any event, that an estoppel generally cannot be raised in the context of administrative decision making such as that engaged in by Griffith University in making the decisions the subject of review. This is because “...an administrator’s discretion to act in the public interest should not be fettered.”[79] Hence, as a general rule:[80]
“…an estoppel cannot be raised to prevent the performance of a statutory duty or hinder the exercise of a statutory discretion to be performed or exercised in the public interest, by an administrator’s having become bound by a representation that the duty or power will be performed or exercised in a particular way in advance.”[81]
[79] Ibid [10-13095]. There are exceptions to the non-fettering principle, albeit none appear of relevance in the circumstances: at [10-13105].
[80] One subject to exceptions: Ibid [10-13105].
[81] Ibid [10-12860], citing Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 74-6.
Accordingly, Griffith University (and the Tribunal standing in its shoes) is not bound by the decisions that s 36-20 applied to the applicant in relation to units of study in which he had enrolled in study periods before study period 3 of 2017 so as to now preclude decisions that s 36-20 does not apply to the applicant in relation to units of study in which he had enrolled in and after study period 3 of 2017.
I turn now to consider whether the three criteria that must be met in order for there to be “special circumstances” are met in the circumstances (criteria which, as mentioned earlier, must be considered in the context of the guidelines). Before doing so, however, I note that the criteria are cumulative – all criteria need to be met. As soon will be apparent, I am not satisfied that any of them are met in the circumstances.
Beyond control?
I am not satisfied that the circumstances of relevance to each decision the subject of review were beyond the applicant’s control. Those circumstances include the applicable medical circumstances and the following circumstances.
As at the census date of each of the units of study for which he seeks remission of the HECS-HELP debt, the applicant knew that he suffered from a medical condition the symptoms of which may be such as to prevent him from undertaking and completing the unit. He also then knew that the risk of those symptoms doing so was significant, given that:
(a)they had been ongoing and persistent (albeit variable in severity); and
(b)he had already sought (and obtained) remission of the HECS-HELP debt attributable to other units in which he had enrolled but failed to complete due to those symptoms.
Despite knowing these things, the applicant elected to enrol in each relevant unit of study (at a time when, according to the applicant’s evidence at the hearing this proceeding, he was symptomatic) and took no steps to withdraw from it prior to its census date. Having so enrolled and taken no such steps to withdraw, the applicant found himself in a situation where he was seeking to withdraw from the unit of study after its census date due to an inability to complete the unit because of the applicable circumstances.
The Tribunal has addressed, on a number of occasions, the position of a student who suffers from a medical condition with fluctuating symptoms who, in the knowledge of the condition and of its symptoms, nevertheless elects to enrol in a unit of study and not withdraw from it before its census date.
In Heath,[82] it was decided that circumstances were not beyond the control of a person who had failed to withdraw from a unit of study in the context of a pre-existing condition the symptoms of which fluctuated.
[82] Heath and Secretary, Department of Education, Skills and Employment [2021] AATA 2280 at [29]-[32].
In Sadek,[83] also in the context of a such a condition, it was said that:
“[w]hile I accept that the applicant’s medical conditions were not “within her control”, the applicant has not sufficiently demonstrated how her circumstances as a whole were beyond her control. Given the ongoing nature of her medical conditions over a number of years, the applicant ought to have understood her capacity to undertake the relevant subjects given the reactive and intermittent nature of her mental health and physiological conditions. The fact that the applicant’s medical conditions existed before the relevant census date meant that it was possible for her to withdraw from the Units before the relevant census date. This was within her control.”
[83] Sadek and Secretary Department of Education [2017] AATA 1399 at [29], applied in Khan and Secretary, Department of Education [2019] AATA 3609 at [52].
Similarly, in Tralongo,[84] it was said that:
“…the failure to withdraw by the census date was not beyond her control and that her situation was not unusual or uncommon in the circumstances of the disease having been first diagnosed in March 2008. Any flare up or exacerbation was not unusual or uncommon for Ms Tralongo who had similar flare ups whilst studying in previous semesters.”
[84] Tralongo and Secretary, Department of Education [2016] AATA 393 at [24].
In the circumstances outlined in [59]-[60], I am not satisfied that the situation in which the applicant found himself (as outlined at [60]) was beyond his control. It was not unusual, uncommon or abnormal or one which a reasonable person would consider was not due to the applicant’s action or inaction and for which the applicant was not responsible.
Circumstances did not make their full impact on applicant until on or after the census date?
I am not satisfied that the applicable medical circumstances did not make their full impact on the applicant until on or after the census date for any of the relevant units of study.
Those circumstances subsisted before the census date of each unit of study of relevance to the decisions the subject of review. As mentioned earlier, symptoms of the applicant’s medical condition had been ongoing since December 2016, well before the earliest census date of relevance (18 September 2017). It was then clear that they had the potential to prevent the applicant from completing units of study. This is apparent from the fact that he had sought and obtained remission of his HECS-HELP debt in relation to units of study in which he had enrolled in study periods 1 and 2 of 2017 due to those circumstances.
What is not clear on the material before me, however, is that the applicable medical circumstances worsened after any relevant census date.
An aspect of those circumstances comprises symptoms associated with the applicant’s vestibular, chronic, migraine condition. As described earlier, those symptoms were persistent and ongoing but varied in severity. Circumstances which include fluctuating symptoms do not worsen merely because, at a point in time, the symptoms were more severe than they were at a particular earlier point in time. That the severity of the applicant’s symptoms differed over time was inherent in their fluctuating nature. In this regard, the applicant did not submit, and the material before me did not establish, that there was any trend of increasingly severe symptoms.
Moreover, I am not satisfied on the material before me that the effect or magnitude of the applicable circumstances prior to the census date of any of the relevant units of study was less than that which the applicant experienced after the census date. I note that, having obtained remission of his HECS-HELP debt in relation to units in which he had enrolled in study periods 1 and 2 of 2017, the effect or magnitude of the applicable circumstances in those study periods was, presumably, sufficient to prevent him from completing units of study.
I note that in Trolango, the Tribunal decided that it could not be said that the circumstances of a person’s illness did not make their full impact until after the census date of the unit of study in question as, prior to the census date, flare ups or exacerbation of symptoms “were regular in previous semesters”.[85]
[85] Ibid at [25].
Accordingly, while I am satisfied that the applicable medical circumstances occurred before the census date of each unit of study of relevance to the decisions the subject of review, I am not satisfied those circumstances worsened after any such census date or that their full effect or magnitude only then became apparent.
Circumstances made it impracticable for applicant to complete the requirements for a unit of study during the period which he undertook, or was to undertake, the unit?
The respondent conceded that this criterion was satisfied in relation to the units of study in which the applicant enrolled in study periods 3 and 4 of 2017 and study period 2 of 2018.[86] Despite this concession, I am not satisfied that the applicable medical circumstances made it impracticable to complete any of the units of study of relevance to the decisions the subject of review.
[86] R SFIC [80].
As to the meaning of “impracticable”, I refer to Zabaneh[87] in which a dictionary definition of “impracticable” as meaning “not able to be done” was adopted, an approach which has since been followed in a number of Tribunal decisions.[88]
[87] Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at [45].
[88] Bow and Secretary, Department of Education [2020] AATA 114 at [53]; Khan and Secretary, Department of Education [2019] AATA 3609 at [62] but see a possibly more extreme approach found in the decision of Ullah and Secretary, Department of Education and Training [2018] AATA 2159 where, at [36], it was suggested that continuing with a unit of study was not impracticable as it was not “impossible” for the relevant person to so continue.
I note that at least in some of the study periods in question the applicant “was working at the gym quite regularly as well as training there.”[89] I also note that in study period 2 of 2019 the applicant was able to complete one unit of study successfully.
[89] SD1, p.146 (letter of Dr Eller of 1 February 2018).
As outlined earlier, the material before me suggests that the applicable medical circumstances were ongoing and persistent throughout the study periods in question. That material is not suggestive of the applicant having become, in or after study period 3 of 2017, unable to continue studying due to some change in circumstances.
It is clear that, when severe, the symptoms of the applicant’s medical condition would have precluded the applicant from studying, listening to lectures, participating in tutorials or working on assignments. So much is apparent from the material before me. What is not so apparent, however, is the extent to which the applicant suffered such severe symptoms in any of the relevant study periods. Absent sufficient material of that nature, I cannot be satisfied that the applicant was 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 his compulsory course requirements;
(b)complete the required assessable work;
(c)sit the required examinations; or
(d)complete any other course requirements because of his inability to do any of the foregoing.[90]
[90] Guidelines, 3.15.1.

Accordingly, I am not satisfied that the applicable medical circumstances were such as to make it impracticable for the applicant to complete any of the relevant units of study.
I turn now to mention an additional submission made by the respondent in relation to a unit of study in which the applicant enrolled in study period 2 of 2019.
According to the respondent, I ought not be satisfied that the applicable circumstances were such as to make it impracticable for the applicant to complete any such unit of study given that he was able to complete another unit of study in which he had enrolled in study period 2 of 2019.[91]
[91] T25, p.125.
The respondent points to the decision in HZMP.[92] There, as here, the applicant was seeking remission based on special circumstances in relation to a unit of study. In the semester in which the applicant had enrolled in that unit of study, the applicant was able to complete another unit of study (as was done in relation to a unit of study in the following semester). In those circumstances, the Tribunal found it was not impracticable for the applicant to have completed the unit of study in question.
[92] HMZP and Secretary, Department of Education [2015] AATA 666 at [21]-[22].
Given my conclusion that the impracticability criterion is not satisfied in relation to any of the relevant study periods, it is not necessary for me to reach a conclusion on this additional submission of the respondent. I simply mention, however, that it does appear to have merit given that the circumstances confronted by the Tribunal in HZMP appear analogous to those now before me.
CONCLUSION
I have decided that s 36-20 of the Act does not apply to the applicant in relation to any of the units of study in which he enrolled in study periods 3 and 4 of 2017, study period 2 of 2018 and study period 2 of 2019.
Accordingly, each decision the subject of review is affirmed.

85. I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

.....................[SGD]...................................................
Associate
Dated: 18 October 2021

Date of hearing: 18 August 2021

Applicant:
Self-represented

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Subasha Prasad

MinterEllison