Pulvirenti v Secretary, Department of Education
[2024] FCA 1106
•23 September 2024
FEDERAL COURT OF AUSTRALIA
Pulvirenti v Secretary, Department of Education [2024] FCA 1106
Appeal from: HHJK v Secretary, Department of Education [2023] AATA 1775 File number: SAD 97 of 2023 Judgment of: CHARLESWORTH J Date of judgment: 23 September 2024 Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeal Tribunal – appeal confined to questions of law – Tribunal affirmed a decision not to remit a portion of the applicant’s HECS debt – Tribunal refusing to waive a requirement that an application for remission be made within a prescribed application period – whether Tribunal misconstrued a condition on the power to waive – whether Tribunal failed to have regard to relevant considerations – no error of law disclosed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Higher Education Support Act 2003 (Cth) ss 36-20, 36-21, 36-22, 96-1, 137-5
Higher Education Support (Administration) Guidelines 2022 (Cth)
Cases cited: CNPG v Secretary, Department of Education [2022] AATA 4349
HHJK v Secretary, Department of Education [2023] AATA 1775
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Thomson v Secretary, Department of Education, Skills and Employment [2020] AATA 4672
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 43 Date of hearing: 24 November 2023 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr P d’Assumpcao Solicitor for the Respondent: MinterEllison ORDERS
SAD 97 of 2023 BETWEEN: JOHANNA PULVIRENTI
Applicant
AND: SECRETARY, DEPARTMENT OF EDUCATION
Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
23 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J
In 2010, the applicant, Ms Johanna Pulvirenti, enrolled with the University of New England to study a Bachelor of Laws. To fund her studies, Ms Pulvirenti obtained a loan under the Higher Education Contribution Scheme (HECS) established under the Higher Education Support Act 2003 (Cth).
The University is a higher education provider for the purposes of the Act. The Scheme established by the Act confers upon certain students an entitlement to an amount of HECS assistance for a unit of study with a provider, and imposes an obligation on the Commonwealth to lend to the student an amount of HECS assistance and to pay to the provider the same amount in discharge of the student’s liability to pay fees in respect of the unit: Act, s 96-1.
Ms Pulvirenti’s loan gave rise to a debt under s 137-5(1) of the Act (HECS debt). Under s 137-5(4) of the Act, a person’s HECS debt in relation to a unit of study is taken to be remitted if (relevantly) s 36-20 applies to the person. In cases where a person’s HECS debt in relation to a unit of study is taken to be remitted, the person is entitled to be paid an amount equal to the payment or sum of payments the person has made.
Under s 36-20, a provider must (on behalf of the Secretary) determine that the section applies to the person if a number of criteria are met. The criteria under consideration on this appeal are those contained in s 36-20(1)(d), (e) and (f). They provide:
36-20 Providers to repay amounts—special circumstances
(1)A higher education provider must, on the *Secretary’s behalf, determine that this section applies to a person if:
…
(d)the provider is satisfied that special circumstances apply to the person (see section 36-21); and
(e)the person applies in writing to that provider for either or both:
(i)the repayment of any amounts that the person paid in relation to his or her *student contribution amount for the unit; or
(ii)the remission of the person’s *HECS-HELP debt in relation to the unit; and
(f) either:
(i)the application is made before the end of the application period under section 36-22; 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
Note 1:A HECS-HELP debt of a person to whom this section applies is remitted under subsection 137-5(4).
Note 2:A decision that this section does not apply to a person is reviewable under Part 5-7.
(2)If the provider determines that this section applies to a person, the provider must:
(a)pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and
(b)pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
(3) Subsection (2) does not apply to the provider if:
(a)the person enrolled in the unit as a *replacement unit; or
(b)it is determined that section 36-24A applies to the person; or
(c)section 36-24BA applies in relation to the provider in relation to the unit.
(4)The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to circumstances to which paragraph (3)(a) applies:
(a) the amount (if any) that is to be paid to the person; and
(b) the amount (if any) that is to be paid to the Commonwealth; and
(c) the person (if any) who is to pay the amounts.
(5)If a determination made under subsection (1) is made in writing, the determination is not a legislative instrument.
(emphasis added)
The expression “special circumstances” is defined in s 36-21 as follows:
36-21 Special circumstances
(1)For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:
(a)are beyond the person’s control; and
(b)do not make their full impact on the person until on or after the *census date for the unit of study; and
(c)make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
(2)The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.
Between 2010 and 2013, Ms Pulvirenti withdrew from some units of study and failed in others. It is not in dispute that at the time of those withdrawals and failures, she suffered from Attention Deficit Hyperactivity Disorder (ADHD) which at that time was undiagnosed.
On 6 July 2022, Ms Pulvirenti made two applications for remission of her HECS debt in relation to seven units of study attempted between 2010 and 2013. The applications were made outside of the application periods provided for in s 36-20(1)(f)(i) and s 36-22 of the Act.
In support of her applications, Ms Pulvirenti argued that the University should waive the requirement that the applications be made within the prescribed time. She argued that special circumstances applied to her because of her undiagnosed ADHD, for which she did not receive treatment until 2018. Among other things, she stated “I believed I could complete the required study to successfully pass the courses but [I] mentally and physically could not. This was beyond my control”.
The University rejected the applications and refused to remit the debt, then again rejected them on internal review. Those decisions were affirmed on review by the Administrative Appeals Tribunal: HHJK v Secretary, Department of Education [2023] AATA 1775.
This appeal from the Tribunal’s decision is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). It is confined to questions of law.
Ms Pulvirenti appeared unrepresented on the appeal. Her grounds of appeal alleged that the Tribunal’s decision was an improper use of the power conferred under the Act, and that the decision “involved an error of law, whether or not the error appears on the record of the decision”. Those grounds were impermissibly broad, but sufficient content was given to them by way of Ms Pulvirenti’s written and oral submissions, together with her articulation of two questions of law she alleged arose. They were as follows:
1.Did the Tribunal make an error of law in failing to first consider whether special circumstances applied to the Applicant pursuant to section 36.20(1)(d) and section 36.21 of the Act before it decided whether to grant a waiver of the requirement that the application be made before the end of the application period in section 36.22 of the Act.
2.Did the Tribunal make an error of law by considering whether there was a reasonable explanation for the Applicant’s delay in making her application outside of the application period in section 36-22 of the Act, rather than considering whether it would not be or was not ‘possible’ for the application to be made before the end of the application period in section 36-22 of the Act.
THE TRIBUNAL’S REASONS
After setting out some background the Tribunal referred to submissions Ms Pulvirenti had made to the University in support of her applications and in the context of the University’s internal review. In each instance the University had found that Ms Pulvirenti had made another application for remission of a portion of her HECS debt in 2018, and had taken into account the delay between that application and the subject applications made some three years later. Ms Pulvirenti had alleged that the University had wrongly applied s 36-20(1)(f) by focussing on the period after 2018, rather than asking whether it was possible to make the application within the period prescribed by the Act.
The Tribunal extracted this portion of the University’s reasons for rejecting the applications (the emphasis is the Tribunal’s):
The Timeframe for applying for a remission, as specified in the Higher Education Administrative Information for Providers, is 12 months after the end of the study period in which the units were undertaken or completed, or 12 months after the student withdrew from the units.
Unfortunately, in undertaking a full review of this case, there is insufficient evidence to support a waiver of the 12-month application timeframe.
If an application is made outside the application period, the provider should consider whether it is prepared to waive the requirement the application be made before the end of the application period on the grounds that it was not possible for the application to be made before the end of that period [HESA sections 36-20, 36-23, 104-25 and 104-40].
The additional evidence provided by you (dated 19 July 2022) in the form of a Psychiatrist’s Letter included in-depth information about your condition, which addressed each of the three (3) special circumstances criteria. However, the letter does not specifically or reasonably demonstrate why it was not possible for you to apply for a Remission of Fees within the 12-month timeframe for each relevant study period. I n addition, you have not provided evidence in relation to what occurred prior to you resuming your studies in 2018, and why it was not possible for you to apply for a Remission of Fees.
The Tribunal said that the first issue for its determination was whether the respective application periods should be waived under s 36-20(1)(f)(ii) of the Act on the basis that it would not be, or was not possible, for the applications to be made before the end of each period. On the basis of prior decisions of the Tribunal, it proceeded on the basis that the word “possible” meant “reasonably possible in all the circumstances” and that it was necessary for Ms Pulvirenti to show 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”: CNPG v Secretary, Department of Education [2022] AATA 4349 (at [85]); Thomson v Secretary, Department of Education, Skills and Employment [2020] AATA 4672 (at [32]).
The Tribunal observed that Ms Pulvirenti could not succeed unless the application period was waived under s 36-20(1)(f)(ii), and that if the period was waived, it would then be necessary to show that the “special circumstances” applied to her within the meaning of s 36-20(1)(d). It observed that the matters that must be examined and considered when assessing the “special circumstances” criterion were set out in Ch 3 of the Higher Education Support (Administration) Guidelines 2022 (Cth).
In determining whether the application periods should be waived, the Tribunal said that in 2019, Ms Pulvirenti had made a successful application for the remittal of her HECS debt in relation to a different unit of study, and that that application had been made within the prescribed timeframe. The Tribunal said that the applicant had accordingly become acquainted with the procedures for making an application for remission prior to making the two applications forming the subject matter of the Tribunal’s review.
The Tribunal then summarised Ms Pulvirenti’s submissions in the following terms:
25.The Applicant has contended that it ‘would not be possible’, rather than ‘was not possible’, for her to make her application for remission within the application period. There is some technicality in this contention, but it is clarified with the reasoning that the Applicant ‘did not have her diagnosis of her ADHD until 2018 or the evidence of how her condition affected her academically before and after treatment within the 12 month time frame required’. In her statement of 22 November 2022, the Applicant stated:
My argument is that it was not possible for me to make an application in the relevant time frames because I was not armed with a diagnosis or evidence within the time frames that would allow me to make an application if I wished to. I was incapacitated and prevented from making the application.
[Emphasis added]
26.The Applicant’s contention is consistent with the review application where she stated that ‘It was not until I was treated and successfully completed my studies that I had the reason and the evidence (my success in the course) to then put in an application’. Similar reasoning was also provided in the course of the hearing that the Applicant did not have evidence of her academic success and therefore delayed her applications for remission of her HECS-HELP debts.
(emphasis in original, footnotes omitted)
The Tribunal said that the argument about the necessity of proof of later academic success “was not central” in the applications later made in July 2022. It said that in the latter applications Ms Pulvirenti’s central submission was that there was no restriction or time limit for applying for special circumstances and that she had demonstrated that she was “physically and mentally” unable to apply. The Tribunal continued (at [28]):
The Applicant’s academic record contains several annotations asking her to Show Cause, permitting her to continue with restrictions, warning her on Academic Progress, and excluding her from enrolment in 2014. In 2011, the Applicant found her exams ‘really difficult’ to the point that she did not sit them all. The Applicant had nevertheless long engaged with UNE regarding her mental health, particularly while applying for special examinations. The Applicant also received counselling at the UNE Wellness Centre in 2011 and ‘reported concerns relating to situational stressors, physical health issues, depression and study difficulties’.
(footnotes omitted).
The Tribunal then turned to consider the psychological evidence before it. That included:
(1)The evidence of Ms Annette Berwald to the effect that Ms Pulvirenti was suffering from Post Traumatic Stress Disorder (PTSD) by May 2023 and that in the course of applying for special examinations at that time Ms Pulvirenti had told the University that she suffered from PTSD as well as distress, embarrassment, anxiety and stress.
(2)A report of Dr Helen Tingay of 26 February 2013 stating that Ms Pulvirenti presented with generalised anxiety, panic anxiety disorder and PTSD “on a setting of unspecified learning difficulties”.
(3)Evidence showing that, in general, adults with ADHD may be highly emotional and dysregulated.
(4)A report of Dr Jules Begg of 5 July 2022 (First Begg Report) confirming that Ms Pulvirenti had undiagnosed ADHD prior to 2012 and that from that time there had been a good response (presumably to treatment) such that she “now demonstrates good psychological self-management”. The First Begg Report also stated that Ms Pulvirenti “fits this classical description of the adverse effects of undiagnosed ADHD on young adults” and that it was “the significant underlying factor in her problems, with the poor executive functioning impairing her ability to complete her academic studies”.
The Tribunal found that evidence of Ms Pulvirenti’s good psychological self-management following treatment explained her academic success such that by 2 November 2020 she had completed her studies and was conferred with a Bachelor of Laws in the following month. However, the Tribunal said, neither the First Begg Report nor a further report from Dr Begg (Second Begg Report) “specifically or reasonably demonstrate” why it was not possible for Ms Pulvirenti to apply for a remission of her HECS debt within the 12 month timeframe for each relevant study period. In that regard, it extracted the following passage from the Second Begg Report:
It is therefore probable, that as you say, you became overwhelmed as the academic term drew to its conclusion leading to your failures. I understand that you have demonstrated by subsequent academic success when on treatment that treatment of your ADHD has been an important component in your ability to manage academic stress.
I therefore concluded, on the balance of probabilities, that you likely overestimated your capacity at the time of the census date but as the academic term drew to its conclusion, you did not manage the stresses of the assignments and examinations, leading to failure. Your ability to learn from these mistakes would have been diminished, a common occurrence seen in people with ADHD.
If you were not adequately treated from your ADHD it would have been very difficult for you to complete the requirements for your study unit.
[Emphasis added]
(emphasis in original)
After noting that there were in fact different census dates referrable to each unit of study, the Tribunal said that the date of clinical onset or material aggravation(s) of Ms Pulvirenti’s ADHD was unclear. The Tribunal said that the 18 month delay between Ms Pulvirenti receiving her Bachelor of Laws in December 2020 and the making of the subject applications was central to its decision. It referred to Ms Pulvirenti’s written statement in which she said that she was incapacitated and prevented from making the application in time because she was not “armed with a diagnosis or evidence within the time frames”. The Tribunal said that it was “guarded” in its consideration of that evidence because it materially differed from what Ms Pulvirenti had said on her application for internal review of the University’s decision which had focused on her understanding as to the lack of any time limits. The Tribunal said that the evidence before it did not support a finding that Ms Pulvirenti lacked the legal capacity to carry out the tasks necessary to make the applications at any material time. On the contrary, the Tribunal said she was able to perform routine administrative actions during the relevant time periods, as demonstrated by her ability to apply for special examinations. The Tribunal noted that Ms Pulvirenti had not later submitted her applications upon the successful completion of each unit of study, and yet she had made an application in 2019 for a unit of study that she had not completed.
The Tribunal found that by December 2020 the applicant had both her diagnosis of ADHD and the evidence of her academic success that she believed she required to make the relevant applications for remissions, however even then she did not make those applications for a further 18 months. The Tribunal said that that delay had not been reasonably explained in the material before it.
The Tribunal restated the test in s 36-20(1)(f)(ii) before concluding in respect of each unit of study that the evidence was insufficient for it to be satisfied that it would not be, or was not, possible for the application in respect of each of them to be made before the end of each respective application period. Accordingly, it said, it would not grant a waiver under s 36-20(1)(f)(ii) of the Act.
The Tribunal said it was unnecessary to proceed further to consider whether special circumstances applied under s 36-20(1)(d) of the Act and the Guidelines because it must affirm the decisions under review if any one of the criterion listed in s 36-20(1) was not met.
ISSUES ARISING ON THE APPEAL
In the order presented by Ms Pulvirenti the appeal turns on two contentions.
First, Ms Pulvirenti contends that the Tribunal asked itself the wrong question by considering whether there was a reasonable explanation for the delay in making the remission applications (including the delay following the expiry of the application period) rather than considering whether or not it would be possible for the applications to have been made before the expiry of the relevant application periods. I will refer to that as the “Waiver Issue”.
Ms Pulvirenti contends that the Tribunal’s focus on the period after the expiry of the application period involved a misapplication of s 36-20(1)(f)(ii) of the Act. She contends that whilst the ultimate conclusions of the Tribunal were expressed in language that reflected the correct test, the actual reasoning process employed by the Tribunal was extraneous to it. Those arguments give some content to the first ground of appeal and fairly encapsulate the second question of law.
Secondly, Ms Pulvirenti contends that the Tribunal erred in law by failing to first consider whether special circumstances applied to her within the meaning of s 36-20(1)(d) and s 36-21 of the Act before it decided whether it should waive the requirement that the applications be made within the relevant application periods. That argument gives content to the second ground of appeal and fairly encapsulates the first question of law. I will refer to it as the “Special Circumstances Issue”.
In the result I have concluded that Ms Pulvirenti is correct in her submissions about the proper construction of s 36-20(1)(f)(ii) of the Act. However, I am not satisfied that the Tribunal adopted an incorrect construction and so reject the first contention. Nor did the Tribunal err in law by failing to first identify whether special circumstances applied to Ms Pulvirenti. The second contention must also be rejected and the appeal must accordingly be dismissed.
THE WAIVER ISSUE
Section 36-20(1)(f) of the Act contains two alternate criteria: the application for remission must be made before the end of the defined “application period” or the provider waives the requirement that the application be made before the end of that period. The waiver can only be made on the ground that it would not be, or was not, possible for the application to be made before the end of that period. The text of the provision makes it plain that the “possibility” requirement is one to be assessed on the facts and circumstances as they existed before the expiry of the application period. There is nothing in the text, context or purpose of the provision that would support a construction permitting the provider to grant or refuse a waiver on the basis of any other test. A provider (and the Tribunal) would err if it decided the question of waiver according to its view as to whether there exists a reasonable explanation for any delay between the end of the expiry of the application period and the date on which the application was ultimately made. Error of that kind would warrant an order setting the decision on review aside and remitting the review application to the Tribunal for determination according to law. I accept Ms Pulvirenti’s submissions to that extent.
The remainder of Ms Pulvirenti’s submissions focus on the reasons of the Tribunal and the evidence that she contended fulfilled the requirements of s 36-20(1)(f)(ii), properly construed. She extracted portions of the reasons that she alleged indicated the Tribunal’s erroneous focus on whether she had a reasonable explanation for the delay between her ADHD diagnosis in 2018 or her academic success and graduation in December 2020 and the date on which each remission application was made. She emphasised the undisputed fact that her ADHD had not been diagnosed until 2018. She submitted that the Tribunal ought to have found that it was not possible for her to make an application for remission until she was equipped not only with her ADHD diagnosis but also the evidence of her later success in her academic studies. She submitted that the evidence of her later success demonstrated the causal connection between the disorder and her previous poor performance in the units of study from which she had withdrawn or that she had failed.
As to the “not possible” test, Ms Pulvirenti submitted that it requires a physical, mental or other serious restraint on a person being able to submit a remission application at that time. She submitted that the phrase “would not be possible” had an element of hindsight to it. She submitted that in her case it “would not be possible” to make the application if she did not have a diagnosis of ADHD and therefore did not within the application period have the evidence to support such an application. She submitted that an enquiry as to whether it was “possible” to do a thing was not restricted to whether a person was physically prevented from doing the thing.
When considered in isolation, there are some passages in the Tribunal’s reasons that are suggestive of error. Two examples may be given. First, the Tribunal observed that there was a delay of some years between Ms Pulvirenti obtaining her ADHD diagnosis and the eventual making of the subject applications and remarked that the evidence did not supply an explanation for that delay. Secondly, the Tribunal formed the view that Ms Pulvirenti had in fact made a remission application in relation to another unit of study in 2019, so demonstrating that at that time there was no impediment in her doing so. In each instance the focus of the Tribunal was on the period of time between the expiration of the application period and the date on which the application was eventually made.
However, it is not appropriate to read passages of the reasons in isolation from the whole, nor to read the decisions of an administrative decision-maker “with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272). Read fairly and in their proper context, the passages complained of form a part of a course of reasoning that is in accordance with the proper construction of s 36-20(1)(f)(ii) of the Act.
In determining whether it would not be possible for a student to make an application for remission within the application period, it is not impermissible for a decision-maker to have regard to relevant facts and circumstances existing at other times. In the present case, the reasons of the Tribunal correctly summarised the central argument Ms Pulvirenti had advanced, namely that she was not equipped with her diagnosis or proof of its effect on her studies until after the application period had expired. It scrutinised the claim by reference to relevant events that occurred at later times. The reasons may be understood as a rejection of Ms Pulvirenti’s claim that she could not make a remission application until she was equipped with the information she later obtained about her ADHD. It had particular regard to Ms Pulvirenti’s actions prior to the expiry of the application period in communicating with the University about her study difficulties, including by making applications for special examinations. It referred to the 2019 remission application as an example of Ms Pulvirenti making a successful application without first being armed with evidence of the effectiveness of her treatment. The Tribunal may be understood as referring to that later application as one that undermined Ms Pulvirenti’s factual allegation that she could not have made an application without first being equipped with all of the information she referred to in her submissions. The Tribunal also said it was “guarded” about Ms Pulvirenti’s claims about what she required in order for it to be possible for her to make an application because it perceived that she had previously advanced her claims at the internal review stage on a different footing. The Tribunal may not have been correct in that perception. However, the questions of law articulated by Ms Pulvirenti on this appeal do not fairly encompass such an error. Whether or not the Tribunal was correct in analysing the facts as provided for the 2019 application gives rise to a question of fact but does not demonstrate error of law.
It is also true that the Tribunal asked itself whether Ms Pulvirenti had provided an explanation for the delay between her diagnosis, the conferral of her degree and the eventual making of the applications. But on a correct interpretation of the reasons as a whole, I am not satisfied that it erected that question as the test for whether a waiver should be granted. Rather, it considered that the later delay undermined Ms Pulvirenti’s claims about what was “possible” at earlier times.
Nor was the Tribunal satisfied that the evidence disclosed when the onset of ADHD occurred. That was a relevant question to ask given that the evidence disclosed a variety of psychological issues and given its awareness that Ms Pulvirenti had, at the earlier relevant times, engaged with the University about her mental health issues. The Tribunal may be understood to have concluded that it was possible to make the remission applications within the application periods irrespective of whether Ms Pulvirenti had undiagnosed ADHD at that time, just as it had been possible for her to apply for special examinations.
In oral submissions, Ms Pulvirenti otherwise asserted that the Tribunal was wrong to ask itself whether she was mentally or physically incapacitated because her case did not depend on proof of incapacity of that kind. I do not accept that aspect of Ms Pulvirenti’s submissions. The submissions Ms Pulvirenti made before the University and the Tribunal did include references to her incapacity, and that explains why the topic is given some consideration in the Tribunal’s reasons.
In my view, the case is one in which the Tribunal was not satisfied that there was sufficient evidence to establish Ms Pulvirenti’s claim that it would not have been possible for her to apply within the prescribed time periods for the specific reason that she had asserted. It properly understood her arguments and did not ask itself the wrong question in considering them. No error of law is disclosed.
THE SPECIAL CIRCUMSTANCES ISSUE
This issue may be briefly disposed of. The question of law said to arise is whether the Tribunal erred in concluding that no waiver should be granted without first considering whether special circumstances applied to Ms Pulvirenti within the meaning of s 36-20(1)(d) and s 36-21 of the Act.
The criteria in s 36-20(1) are cumulative: each of them must be satisfied in order for a HECS debt in respect of a unit of study to be remitted. That was common ground.
Ms Pulvirenti’s submission was expressed as follows:
The special circumstances claimed are the actual reasons for the inability to apply within the 12-month timeframe. It’s hard to imagine a situation where the special circumstances claimed would not affect the ability of a person to apply within the 12-month time frame. Special circumstances are a mandatory consideration to be addressed first as they are more likely than not to be required to decide in subsection 36-20(f)(ii).
The circumstance that the two criteria may raise common factual questions does not warrant a conclusion that one must be determined before the other. They are discrete statutory tests. Failure to satisfy either of them must result in a refusal of the remittal application. Here, the Tribunal took into account the facts and circumstances asserted by Ms Pulvirenti, made factual findings on the material before it and determined that no waiver should be granted. It was not necessary for it to determine whether the same facts and circumstances might satisfy a differently expressed criterion. There otherwise is nothing in the text, context or purpose of the provision to support the assertion that one criterion must be determined before the other. Nor has Ms Pulvirenti demonstrated that the particular facts in the present case warranted any such approach.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 23 September 2024
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