QQKR and Secretary, Department of Education

[2025] ARTA 1235

QQKR and Secretary, Department of Education [2025] ARTA 1235 (2 July 2025)

Applicant:QQKR

Respondent:  Secretary, Department of Education

Tribunal Number:                2024/0611

Tribunal:General Member C Willis

Place:Melbourne

Date: 2 July 2025

Decision:The Tribunal affirms the decision under review.

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

General Member Catherine C. Willis

Catchwords

HIGHER EDUCATION SUPPORT – HECS-HELP – application for remission of debt – whether special circumstances existed – whether circumstances beyond applicant’s control – whether circumstances made their full impact on applicant after census dates for units – whether circumstances made it impracticable for applicant to complete requirements for units – decision affirmed

Legislation

Higher Education Support Act 2003 (Cth), ss 97-25, 97-30
Higher Education Support (Administration) Guidelines 2022, Part 3 – Special circumstances, paragraphs 12, 13 and 14

Cases

CPNG and Secretary, Department of Education [2022] AATA 4349
Georgiou and Secretary, Department of Education and Training [2019] AATA 170
Montenegro v Secretary, Department of Education [2020] FCAFC 210
PJPF and Secretary, Department of Education and Training [2016] AATA 833
Sadek and Secretary, Department of Education [2017] AATA 1399
Tollo and Secretary, Department of Education [2023] AATA 2578
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569

Statement of Reasons

INTRODUCTION

1. In February 2022 QQKR (the Applicant) requested a Commonwealth supported place (CSP) and a HECS-HELP loan for her enrolment in a Bachelor of Science course at LaTrobe University (‘the University’).

2. A CSP is partially subsidised by the Australian government. A HECS-HELP loan is a loan from the Australian government to the student which is used to meet the remainder of the fees owing to the higher education provider. This loan must be repaid by the student. The amount of HECS-HELP loan assistance received by a person contributes towards their ‘HELP balance.’[1]

   [1] See section 128-7 of the Higher Education Support Act 2003 (Cth)

3. The Secretary, Department of Education (the Respondent) is the Australian government department with responsibility for the HECS-HELP scheme. A student may apply to their higher education provider for re-crediting of their HELP balance under the Higher Education Support Act 2003 (Cth) (the HESA) and if the student meets the requirements of that legislation, the higher education provider must re-credit the HELP balance on behalf of the Respondent.

4. The Applicant enrolled in and completed four subjects for Semester 1 of her course in 2022. The Applicant then enrolled in three further units of study for Semester 2 (the ‘Units’).

5. The Applicant did not successfully complete the Units and applied to the University for a re-crediting of her HELP balance for those Units, based on medical and other personal circumstances affecting her. The University refused her request, and she sought an internal review by the University of that refusal. The internal review upheld the original refusal.

6. The Applicant applied to the Tribunal for a review of the University’s decision.

7. The Respondent filed a Joint Tender Bundle which included the following:

   (a)The Applicant’s original Statement of Facts, Issues and Contentions (‘SFIC’) dated 2 April 2024 and a further SFIC dated 27 January 2025.

   (b)The Respondent’s SFIC dated 3 March 2025.

   (c)Tribunal Documents (‘T Documents’) filed by the Respondent on 1 March 2024.[2]

   (d)Supplementary Tribunal Documents (‘Supp T Docs’) filed on 3 March 2025.[3]

   (e)Supporting material filed by the Applicant, including a witness statement of the Applicant dated 19 June 2024 and letters from two of her medical practitioners.

   BACKGROUND

   [2] These are documents that were required to be lodged by the Respondent under section 37 of the former Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).  In this decision evidence and other documents will be referred to by their T Doc or Supp T Doc references.  The T Docs were found at TB4 in the Joint Tender Bundle.

   [3] The AAT Act was replaced by the Administrative Review Tribunal Act 2024 (Cth) and section 23 of that Act is the equivalent provision to section 37 of the AAT Act. The Supp T Docs were found at TB5 in the Joint Tender Bundle.

   Timeline of events

8. In her witness statement the Applicant provided the following background to her personal circumstances:

   (a)Prior to enrolling at the University, she was living in NSW and had attempted a Bachelor of Arts and a Bachelor of Science at higher education providers in Sydney. She described these studies as unsuccessful due to a lack of support in place for her long-term medical conditions.

   (b)After moving to Melbourne, she decided to recommence study and undertook the STAT[4], scoring sufficiently highly to gain a place at the University. She also engaged with the University’s AccessAbility team for assistance with adjustments.

   (c)The Applicant had commenced employment in 2018 as an apprentice chef with a well-known hospitality venue in Melbourne.

   (d)In Semester 1 of 2022, the Applicant was enrolled in four subjects which she successfully completed, with a WAM[5] of 86.

   (e)Semester 2 of 2022 commenced unremarkably. However the assessment tasks for one of the Units required the Applicant to produce a video presentation which included statements on the subject of her identity. The Applicant described a longstanding and significant degree of anxiety around matters relating to her identity, which can be triggered by audio or visual recording of her. The assessment task had such an impact on her, and she referred to feelings of intense self-hatred and suicidal ideation arising at this time.

   (f)Around the same time, the head chef at her place of employment left, and her relationship with her new manager was not as strong. She said she began to feel alienated in the workplace, which led to her taking personal leave or being absent from work. On 31 August 2022, the Applicant’s employment was terminated with the reason given by her former employer on her separation certificate being ‘poor performance.’

   (g)The Applicant said that her mental health ‘spiralled’ on or after this time, such that she did not leave her home for any purpose including her studies. She again referred to experiencing suicidal ideation at this time.

   (h)The Applicant was living on her own, with no family support and few friends in Melbourne. Her financial circumstances became extremely difficult. She had limited savings and received a minimal amount by way of severance entitlements when her employment ceased. Her rent was high. She did not receive any government assistance and was not able to apply for Centrelink benefits for some months after cessation of her employment.

   (i)She said that at this point, completing the Units was no longer possible for her.  She took a leave of absence from her studies in Semester 1 of 2023. She engaged with the University at this time in relation to remission of the debt relating to the subjects she had failed, as well as having the fail grades removed from her academic transcript.

   (j)She subsequently enrolled in five subjects in Semester 2 of 2023, which she completed successfully with a WAM of 88.8.

   [4] ‘Skills for Tertiary Admissions Test’

   [5] ‘Weighted Average Mark’

9. Although the Applicant had successfully completed four subjects in Semester 1 of 2022, the Respondent drew the Tribunal’s attention to the Applicant having been granted special consideration for assessments in two of those subjects based on medical statements provided by her general practitioner relating to the impact in June 2022 of her ADHD diagnosis.[6]

   [6] Per paragraph 6 of Respondent’s SFIC, and ST44, ST46.

10. The Applicant enrolled in the Units on 1 February 2022. The census date (‘Census Date’) for each of the Units was 31 August 2022.[7] Practically, this is the final date by which a student may withdraw from a subject without penalty. The teaching period for the Units ran from 18 July 2022 to 14 October 2022.

    [7] This is determined in accordance with the definition of that term in Schedule 1 to the HESA and section 169-25 of that Act.  It was not disputed that 31 August 2022 was the relevant census date for the Units.

11. The Applicant withdrew from one of the Units on 13 July 2022 and re-enrolled on the same date. She withdrew and re-enrolled in the same Unit again on 20 July 2022.[8] This appears to be the Unit which included the video presentation assessment task.

    [8] Paragraph B.b. of Applicant’s further SFIC.

12. The exam period for the Units ended on 4 November 2022. As at 26 November 2022, the Applicant was recorded as having failed each of the Units.[9] A subsequent review by the University of the Applicant’s participation in the Units indicated that:

    (a)For one Unit the Applicant did not sit the final exam (worth 50% of the overall mark) and completed some of the other assessment tasks. [10]

    (b)For another Unit in September 2022, the Applicant sought, and was given, an extension of time to complete an assignment.[11] However she did not complete any of the four assignments or sit the exam, which in aggregate were worth 90% of the mark for that Unit. She completed quiz tasks which were worth 10% of the mark.

    (c)For the third Unit, no detail was provided other than the fact that she had failed the subject.

    [9] T6, T26.

    [10] T9.

    [11] T8.

13. The Applicant submitted a Remission of Debt application (‘Remission Application’) to the University on 28 August 2023 for all three Units.[12] The Applicant provided the University with a personal statement in which she identified her difficulty in submitting assessments, particularly the video presentation task. She outlined the mental health challenges she had been facing, including the different diagnoses and treatment approaches she had received from different practitioners. She referred to having feelings of suicidal ideation. She also noted the loss of her employment and how that made her feel.[13] The Applicant also included a Medical Impact Statement from a general practitioner, Dr C, dated 28 August 2023.

    [12] T11.  The Applicant also sought re-crediting of her HELP balance in relation to two online subjects she had undertaken in the Summer 2022 study period.

    [13] The Applicant described these matters in the context of difficulties experienced ‘last year’, which would refer to events in 2022.

14. The University refused the Remission Application on 2 October 2023 (‘Original Refusal Decision’).[14] The University found that ‘based on the evidence provided, you do not meet all requisite criteria as determined by the University policy rules and detailed legislative guidelines.’ The University provided the following reasons:

    (a)The Applicant’s Statement of Personal Circumstances was insufficiently detailed and had not substantiated the date the circumstances occurred and the duration of the fullest impact of the circumstances.

    (b)The evidence provided by the Applicant failed to substantiate the level of impact and/or that the full impact of the circumstance was experienced on or after the Census Date for the Units, and that the Applicant could not have reasonably been expected to withdraw from the Units prior to census or before completing the subject requirements.

    [14] T14.

15. On 30 October 2023, the Applicant sought a review by the University of the Original Refusal Decision.[15] She included with her review request four letters or statements from three medical practitioners (other than Dr C) who had previously treated her. Three of these statements were dated from 2020, 2021 and 2022, reflecting the time when she had been treated by those practitioners. One of the medical practitioners provided a further statement dated 30 October 2023, apparently prepared for the purposes of the review request. The Applicant also provided a further Personal Statement and a copy of the separation certificate from her former employer.

    [15] T15.

16. The Applicant’s personal statement addressed criteria in Part 3 of Section E of the University’s ‘Student Fee Procedure – Remission of Debt’ policy. These criteria reflect the description of ‘special circumstances’ contained in section 97-30 of the HESA and the Administration Guidelines. The Applicant described the relevant circumstances which applied to her as follows[16]:

    The Special Circumstances involved the worsening of symptoms of my medical conditions, which include:

    -    Attention Deficit Hyperactivity Disorder (‘ADHD’); and

    -    Borderline Personality Disorder (‘BPD’); and

    -    Obsessive Compulsive Disorder (‘OCD’); and

    -    Generalised Anxiety Disorder (‘GAD’).

    The Special Circumstances also involved the effects on the above conditions caused by involuntary separation from my full-time, long term employment, on 31 August 2022.

    [16] T15, JTB page 94.

17. The Applicant submitted that although she had been experiencing symptoms of her medical conditions previously, the full impact of her circumstances did not occur until after her involuntary employment separation. Her circumstances then continued to deteriorate with their peak impact occurring in 2023. The Applicant set out the effects of these circumstances on the various aspects of her studies at the University. She referred to the further medical statement dated 30 October 2023 in support of these matters.

18. On 8 January 2024 the University wrote to the Applicant advising its decision (the ‘Review Decision’)[17] to uphold the Original Review Decision. The University said that there was no new evidence that would change the Original Review Decision. In particular, the University said that the Applicant:

    (a)Had not verified that she had experienced the full impact of a change in personal circumstance on or after the Census Date for the Units.

    (b)Had not substantiated that she could not have been reasonably expected to withdraw from the Units prior to census.

    (c)Did not fit the criteria for ‘Special Circumstances’ according to the University’s Policy, as the change in her personal circumstances (the end of her employment contract) was not considered ‘unusual, unexpected or abnormal.’

    [17] T22.

19. In relation to the finding about the Applicant’s employment contract, this appears to have been based on a misunderstanding that the Applicant’s employment ended as a result of a fixed term 5-year contract coming to an end, such that the end of her employment was to be expected. This is despite the University being provided with a copy of the Applicant’s separation certificate which states that ‘unsatisfactory work performance’ was the reason for separation.[18]

    [18] The Tribunal notes that the separation certificate form has a box for ‘end of season or contract’ which could have been selected if that had been the reason for termination of the Applicant’s employment.  T15, JTB at page 89.

    Tribunal procedural history

20. The Applicant applied to the Tribunal for review of the Review Decision on 5 February 2024.

21. The Applicant said in her witness statement that she felt unable to attend the first conference scheduled by the Tribunal due to the trauma associated with this long running matter. Her representative attended on her behalf and relayed what had been discussed with the Respondent and the Tribunal Conference Registrar. The Respondent had indicated that further evidence was required from the Applicant in support of her claims. She prepared her witness statement and obtained letters from two of her medical practitioners in accordance with a direction of the Tribunal, which she identified as being a difficult process.  

    Overview of medical evidence provided

22. The Applicant provided evidence that she had seen a number of medical practitioners in relation to her health conditions. Letters from two of those practitioners were provided to the Tribunal, together with copies of documents provided to the University and prepared by her treating practitioners.

23. In her witness statement the Applicant said that after moving to Melbourne she had sought treatment for her mental health conditions. She had initial consultations with Dr O, which resulted in a referral to a private specialist mental health clinic. At the clinic she saw Dr M, a Consultant Psychiatrist, who diagnosed her with Borderline Personality Disorder, mild Obsessive Compulsive Disorder and Social Anxiety Disorder. Ongoing consultations with Dr M became too expensive for her. She was then referred to Professor S (whose evidence is discussed below) who diagnosed her with ‘mild ADHD’ and prescribed medication to manage the symptoms. The Applicant said there was apparently some disagreement between Dr M and Professor S as to the appropriate diagnosis of her conditions which made treatment difficult and undermined her confidence in her treating practitioners.[19] This appears to have occurred, or at least commenced, prior to her commencing her Semester 2 of 2022 studies at the University.

    [19] A letter from Professor S dated 3 September 2021 to the medical clinic attended by the Applicant notes that the Applicant had stopped taking ADHD medication at the recommendation of Dr M, but that she had since ceased treatment by Dr M.  Professor S said that he remained of the view that the Applicant had ‘mild ADHD.’  A letter from Dr M dated 29 October 2020 confirms disagreement as to her diagnoses.  See correspondence at T15.

24. Dr A is a General Practitioner who provided a letter dated 17 May 2024 stating that the Applicant saw him between June 2022 and October 2022 regarding ADHD and mood related symptoms. Dr A said:

    I noted that she was on medication and this was exacerbating her underlying anxiety.

    This made studying difficult. Her symptoms continue to be increasingly troublesome and we discussed deferring the course due to the impracticability of her completing work with her symptoms. This specifically in a consultation on 29.9.22.

    I provided written correspondence to the University around this time regarding this.

25. The materials filed with the Tribunal included three ‘Medical Impact Statement’ forms of the University signed by Dr A:

    (a)The first was dated 10 June 2022[20] in which he said that he saw the Applicant on that day. He assessed her ability to perform ‘reading and writing tasks’, ‘verbal or physical tasks’ and ‘tasks requiring intense concentration for 1 – 2 hours’ as ‘yes, with a degree of impact.’ He described the level of impact of her conditions as ‘moderate’, estimated the duration of the impact as 1 June 2022 to 15 June 2022 and added the comment ‘Diagnosed ADHD – under review’.

    (b)The second was dated 30 September 2022[21] in which he said that he saw the Applicant on 29 September 2022. He again assessed her ability to perform ‘reading and writing tasks’, ‘verbal or physical tasks’ and ‘tasks requiring intense concentration for 1 – 2 hours’ as ‘yes, with a degree of impact.’ He described the level of impact of her conditions as ‘moderate’, estimated the duration of the impact as August 2022 to January 2022[22] and comments that ‘(under review). Have discussed [Applicant’s] request to defer her studies and am writing in support of this’.

    (c)The third was dated 30 October 2023[23] in which he said that he saw the Applicant on 30 October 2023. He again assessed her ability to perform the listed types of tasks as ‘yes, with a degree of impact’ and the level of impact of her conditions as ‘moderate.’ He estimated the duration of impact as being from 31 August 2022 to 1 January 2023, confirming that this statement also related to the period August/September 2022. He added comments as follows[24] ‘made unemployed 31/8/23. Known ‘ADHD.’ [Illegible] Psychiatry letters x 2. In addition BPD + significant anxiety disorder. Consultation with me on 29.9.23. Uni form completed in light of worsening symptoms which led to decision to withdraw from course.’

    [20] ST45

    [21] T15, JTB page 91.

    [22] The Tribunal has assumed that this was meant to refer to January 2023.

    [23] T15.

    [24] The copy of this document was blurry and some comments of Dr A were difficult to read.  Some of the dates included by Dr A may be incorrect.

1. The Applicant said that she had been attending the medical clinic where Dr A worked since 2018 and had started seeing Dr A around 2019. Dr A was aware that she was studying at the University. In her witness statement she described speaking to Dr A prior to the Census Date about side effects from the ADHD medication she had been prescribed. She recalled seeing Dr A around September 2022.

2. The Respondent sought the issue of a summons to the medical clinic where the Dr A had previously worked to obtain historical medical records of the Applicant. By the time of this summons Dr A no longer worked at that clinic.

3. The Applicant had also provided the University with a statement from Dr C[25] dated 28 August 2023 in support of her Remission Application. Dr C said she saw the Applicant on 28 August 2023. Her report described the impact of the Applicant’s conditions as ‘severe’ during the period 2 August 2022 to 28 August 2023. Dr C said that although the Applicant could perform reading or writing tasks with a ‘degree of impact’ the Applicant was unable to perform verbal or physical tasks or tasks requiring intense focus for 1 – 2 hours. Dr C added the following comments ‘impact of ADHD, GAD, OCD, BPD, on ability to focus, concentrate, study, complete assessments, organisation, attendance. Caused academic difficulties. Recommend fee remission & removal of fail grades. Ability to submit application was impacted and delayed by medical conditions.’

   [25] T11. Dr C was also a general practitioner, but working at a different medical clinic to Dr A.

4. Professor S is a Consultant Psychiatrist who provided a letter dated 16 April 2024[26] in which he certified that the Applicant had been diagnosed with ADHD, Borderline Personality Disorder, Generalised Anxiety Disorder and Obsessive Compulsive Disorder and was under treatment by him. He said:

   In regards to her appeal to the AAT, she has been asked to substantiate that her condition made it impossible for her to continue her university studies in the 2^nd Semester of 2022. Her symptoms reached their peak on or after 31 August 2022, when she was separated from her long-term, permanent employment with lowered mood and inability to focus. Her condition made it difficult for her to seek out effective treatment and had an effect on her ability to study, attend classes, to prepare for and complete academic tasks and this effect was so significant that completing units of study was not possible.

   [26] JTB 6(b).

5. The Applicant gave evidence that she had been referred to Professor S for management of her ADHD, and he appears to be the practitioner who diagnosed her ADHD. She recalled that she had seen him in person twice (around April 2020 and September 2021) and had a telephone consultation on a third occasion (around November 2021). She needed a referral to see him, which she obtained from Dr A, and that referral lasted for approximately one year. By the time that the Applicant enrolled at the University she was taking medication for ADHD as prescribed by Professor S. She said that was the only medication she was taking at the time of her enrolment. The Applicant could not recall if she discussed her difficulties with her studies, or her enrolment at the University in general, with Professor S at the time of their consultations.

6. The Respondent sought the issue of summons to Professor S in relation to any records he held in relation to the Applicant for the period from 2 August 2022 to 28 August 2022. Professor S advised that he did not hold any relevant documents.

   RELEVANT LAW

7. In its Review Decision, the University states that it had ‘followed the s 36-20’ of the HESA in making its decision. The Respondent’s position before the Tribunal is that in substance the Review Decision (and Original Refusal Decision) were made in reliance of section 97-25 of the HESA. This is because the Census Date for the Units was 31 August 2022. The ‘HELP balance provisions’ of the HESA apply to units of study with a census date on or after 1 January 2020.[27]  HECS-HELP assistance received by a person in relation to a unit with a census date on or after 1 January 2020 will contribute to the person’s ‘HELP balance’ under section 128-15(1) of the HESA. The HELP balance provisions also include Division 97. [28]

   [27] Section 144(2), Part 2, Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018 (Cth). This is the amending legislation which inserted Division 97 into the HESA.

   [28] Paragraphs 144(1)(c) and (d).

8. Section 137-5 of the HESA sets out provisions relating to the incurrence of a HECS-HELP debt and when a HECS-HELP debt is taken to be remitted. This includes circumstances in which the person’s HELP balance is re-credited under Division 97.[29]

   [29] Subsection 137-5(5).

9. Division 97 of the HESA sets out the circumstances in which a person’s HELP balance is to be re-credited with an amount equal to the amounts of HECS-HELP assistance that the person has received for a unit of study: section 97-23.

10. Subsection 97-25(2) provides that:

    (2) A higher education provider must, on the *Secretary’s behalf, re-credit a person’s *HELP balance with an amount equal to the amounts of *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.

11. Each of the criteria in subsection 97-25(2) must be satisfied before an amount can be re-credited under this provision. Where each of the criteria is satisfied, the higher education provider ‘must’ re-credit the person’s HELP balance.

12. In relation to the criteria in paragraph 97-25(2)(c) section 97-30 provides that[30]:

    (1)       For the purposes of paragraph 97-25(2)(c), special circumstances apply to the person if, and only if, the higher education provider receiving the application 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.

    (2)       If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.

    [30] The Tribunal observes that the wording of paragraph 97-25(2)(c) and section 97-30 reflects that of paragraph 36-20(1)(d) and section 36-21.

13. The Higher Education Support (Administration) Guidelines 2022 are ‘Administration Guidelines’ made under section 238-10 of the HESA for the purposes of matters in section 36-21.[31] In this context, the Administration Guidelines are not merely relevant considerations, but form part of the statutory scheme that confers and defines the decision-maker’s power and which must be complied with.[32]

    [31] See the Note to subsection 36-21(2).

    [32] Montenegro v Secretary, Department of Education  [2020] FCAFC 210 (‘Montenegro’) at [64] per Charlesworth J, at [25] per Flick J.

14. Part 3 of the Administration Guidelines sets out matters which must be considered for a decision-maker to be ‘satisfied’ that a person’s circumstances meet the criteria in subsection 97-30(1). They provide as follows:

    12 Circumstances beyond a person’s control

    (1) 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.

    (2) 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), 104-30(2) and 128E-5(2) of the Act.

    13 Circumstances that did not make their full impact until on or after the census date

    (1) 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 day;

    (b) before the census date, but the full effect or magnitude does not become apparent until on or after that day; or

    (c) on or after the census date.

    Note : Circumstances specified in this provision also apply for the purposes of subsections 97-30(2), 104-30(2) and 128E-5(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.

    (2) The requirements for a unit of study referred to in subsection (1) are that the person:

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

    (b) completes the required assessable work;

    (c) sits the required examinations; or

    (d) completes any other course requirements.

    Note : Circumstances specified in this provision also apply for the purposes of subsections 97-30(2), 104-30(2) and 128E-5(2) of the Act.

15. Division 206 of the HESA (‘Which decisions are subject to review?’) sets out reviewable decisions for the purposes of the HESA.  This includes a refusal to re-credit a person’s HELP balance under subsection 97-25(2):  Item 1B of the table in section 206-1.  Division 209 sets out the process for reconsideration or internal review of a reviewable decision.  An application may be made to the Tribunal for a review of a reviewable decision that has been confirmed, varied or set aside under sections 209-5 or 209-10:  subsection 212-1(1).

    ISSUES FOR CONSIDERATION

16. The Respondent accepts that the Applicant has satisfied the matters in paragraphs (a), (b), (d) and (e) of subsection 97-25(2). Therefore, the only issue in contention is whether there is a basis for the Tribunal to be satisfied that ‘special circumstances apply’ to the Applicant for the purposes of paragraph 97-25(2)(c).

17. The Respondent contends that special circumstances do not apply to the Applicant, because having regard to section 97-30 and Part 3 of the Administration Guidelines:

    (a)The Applicant’s circumstances were not beyond her control; and/or

    (b)The Applicant’s circumstances did not make their full impact on her on or after the census date for the Units; and/or

    (c)The Applicant’s circumstances did not make it impracticable for her to complete the requirements for the Units in the period during which she undertook those Units.

18. The Applicant’s position is that special circumstances did apply to her, and those special circumstances comprise a combination of her diagnosis of ADHD, borderline personality disorder, generalised anxiety disorder and obsessive compulsive disorder[33] together with her loss of employment in September 2022. The symptoms of her conditions reached their peak after the census date for the Units. The Applicant contends that these circumstances were beyond her control, made their full impact on her after the census date for the Units and made it impracticable for her to complete the requirements for those Units.

    [33] See paragraph D.a. of the Applicant’s SFIC dated 27 January 2025.

    Were the Applicant’s circumstances beyond her control?

19. The parties appeared to be broadly in agreement that in applying paragraph 97-30(1)(a) and clause 12 of the Administration Guidelines, the Tribunal should have regard to the Applicant’s circumstances or situation overall, rather than considering particular conditions or aspects of her situation. This is consistent with the approach taken in Montenegro, where Charlesworth J[34] said that the ‘situation’ of the appellant was not merely the circumstance of the appellant having a medical condition. The medical condition was ‘the starting point in a series of events’ that culminated in the situation for consideration.

    [34] Montenegro at [57] to [58] per Charlesworth J.

20. The Applicant acknowledged that she had mental health conditions which existed prior to August 2022. However the Applicant’s SFIC defined her ‘circumstances’ in terms of the combination of medical conditions which reached a peak after 31 August 2022. Given the nature of these medical conditions, the Applicant argued that these circumstances were not within her control. They were not due to the Applicant’s action or inaction and she was not responsible for them. At the hearing, the Applicant’s representative also referred to the Applicant’s loss of employment, and the nexus between the deterioration of the Applicant’s medical condition and the employment severance, as forming her situation.  This also aligns with the submissions made by the Applicant to the University when she sought a review of the Original Refusal Decision. There was a combination of medical factors, some of which existed prior to 31 August 2022, with her loss of employment which led to a deterioration in her condition, and this was beyond her control.  Although she acknowledged other instances of suicidal ideation in 2018 and 2019 arising from particular events or social interactions, she told the Tribunal at the hearing that her experience in 2022 was worse.

21. The Applicant submitted that the evidence demonstrated that her symptoms reached their peak on or after the Census Date, such that her circumstances were unusual, uncommon or abnormal in this context. The Applicant referred to an earlier decision of the Tribunal, CNPG and Secretary, Department of Education[35] (‘CNPG’), where it was found that the applicant in that matter, although having ‘an acknowledged history of fluctuating and serious mental health conditions’, nevertheless faced an unusual, uncommon or abnormal situation when medical evidence indicated that she suffered a heightening or ‘severe exacerbation’ of her symptoms at the relevant time.

    [35] CNPG and Secretary, Department of Education [2022] AATA 4349.

22. The Respondent said that it did not dispute that the Applicant could not control whether her mental health conditions worsened. However, the Respondent’s position was that the Applicant’s situation or circumstances ‘as a whole’ were not beyond her control in the sense required by the Administration Guidelines.

23. The Respondent referred to three other decisions of the Tribunal, PJPF and Secretary, Department of Education and Training[36], Sadek and Secretary, Department of Education and Training[37] and Tollo and Secretary, Department of Education.[38] Those cases also related to applicants with pre-existing mental health conditions, where their symptoms fluctuated or increased in severity. In each of those cases the Tribunal found that the situation of the applicant was not beyond their control, in the sense that they made a choice to enrol in subjects with knowledge of their conditions and did not withdraw from those subjects prior to the relevant census dates.  Further, the medical history in each case suggested that the situations of those individuals were not unusual, uncommon or abnormal in the context of their circumstances.

    [36] PJPF and Secretary, Department of Education and Training [2016] AATA 833.

    [37] Sadek and Secretary, Department of Education [2017] AATA 1399.

    [38] Tollo and Secretary, Department of Education [2023] AATA 2578.

24. Although previous decisions of the Tribunal indicate how a similar factual background may be viewed, the Tribunal must primarily have regard to the facts and evidence before it in the particular case it is deciding.

25. The Administration Guidelines require that the ‘situation’ not only be outside the person’s control (in the sense of not being due to their action or inaction and for which they are not responsible) but the situation must be ‘unusual, uncommon or abnormal’: Guideline 12(2).

26. The various medical reports relating to the Applicant, together with her own evidence, confirm that she had longstanding mental health conditions which had had an impact on her ability to study, both at the University and in previous educational contexts. This is not controversial, even though there was some disagreement between her treating practitioners as to the precise diagnosis and most appropriate treatment approach. These reports also support a finding that the Applicant’s symptoms increased, or were heightened, at the time of Semester 2 of 2022, particularly around August and September of that year.

27. The Tribunal places the most weight on those medical reports that were broadly contemporaneous with Semester 2 of 2022, including Dr A's statement dated 30 September 2022. That statement indicates that he actually saw the Applicant at the time of providing his statement and on another recent occasion. Further, he had seen the Applicant on multiple occasions from around 2019, and was clearly aware of her studies at the University.  This also includes Dr A’s statement of 30 October 2023 and letter of 17 May 2024, which, while prepared some time after Semester 2 of 2022, appears to draw from records of his previous (contemporaneous) consultations with the Applicant. However his reports do not indicate whether the Applicant’s symptoms, although heightened or increased when he saw her, were unusual, uncommon or abnormal in her circumstances.

28. The Tribunal places less weight on the medical reports that were provided some time after Semester 2 of 2022, particularly those which were prepared in contemplation of the Remission Application, the Review Decision or the application to this Tribunal. This includes the letter from Professor S dated 16 April 2024, which also does not assist in gaining an understanding of whether the Applicant’s situation at that time was unusual, uncommon or abnormal in her circumstances. Whilst acknowledging his particular expertise as a Consultant Psychiatrist, it does not appear that he saw the Applicant around the time of the Census Date. Following a summons issued to him, Professor S indicated that he had no records relating to the Applicant for the month of August 2022. The statement of Dr C, although providing an opinion on the Applicant’s situation across the period from August 2022 to August 2023, was not prepared until 28 August 2023, following a consultation with the Applicant on that day. There is no evidence to indicate whether Dr C saw the Applicant other than on that date, and Dr C worked at a different medical practice to Dr A. The comments provided by Dr C may also indicate a level of self-reporting of symptoms by the Applicant.

1. The Applicant acknowledged prior difficulties with her studies with the higher education providers in NSW due to her medical conditions, as well as seeking special consideration for assessments in relation to Semester 1 of 2022 supported by a Medical Impact Statement from Dr A in similar terms to that which he provided for her Semester 2 of 2022 studies. Even where the Applicant’s symptoms were heightened during Semester 2, the medical evidence does not demonstrate that the Applicant’s situation was unusual, uncommon or abnormal for her.

2. The Tribunal accepts that the termination of employment was an additional circumstance which may not have triggered, or existed at the time of, previous mental health events experienced by the Applicant. The reason given by the employer for the Applicant’s termination of employment was poor performance, although the Tribunal is reluctant to state that this termination was entirely within the Applicant’s control in the ordinary sense of the word ‘control’. However the Applicant described difficulties with her new manager and feelings of alienation in her workplace prior to the formal termination. She said that she was absent from work or taking personal leave due to her medical conditions in the lead up to her termination.

3. Further, the Applicant described a significant cause of her difficulties in Semester 2 of 2022 as being the requirement to submit an assignment based on a video presentation about her identity. She said that audio or visual recordings of her would trigger pre-existing anxieties about personal issues which she attributed in part to her growing up in a difficult family environment.

4. Dr A’s statement of September 2022 indicated his view that around that time, the Applicant could perform various tasks ‘with a degree of impact’ and that the level of impact of her conditions was ‘moderate.’ By contrast to the circumstances in other cases (such as CNPG, where contemporaneous medical evidence from two practitioners indicated that CNPG’s condition had flared in an uncommon way and CNPG lacked insight about that)[39] it would be reasonable to conclude that the Applicant could have withdrawn from the Units prior to the Census Date. She had identified a particular issue with completing one of the mandatory assessments, being the video presentation. For reasons that are not clear, the Applicant did actually withdraw from one Unit (then re-enrolled again, twice) in July 2022. In her witness statement, she said that prior to the Census Date, although she was struggling with her studies, she ‘did not believe that withdrawal was the right choice’ and she believed that she would be able to complete the Units.

   [39] CNPG at [89] per SM Morris.

5. The Applicant therefore has not satisfied the Tribunal that her circumstances were beyond her control, in the sense required by Administration Guideline 12 and paragraph 97-30(1)(a).

6. In making this finding, the Tribunal does not suggest that the Applicant’s medical, employment or financial circumstances in 2022 were not significant or did not cause her great distress. However, for the purposes of deciding whether an amount of HELP-balance must be re-credited, the Tribunal is obliged to apply legislative provisions and Administration Guidelines which contain quite specifically worded tests which an applicant may believe do not recognise their experience of their conditions. The Applicant was also questioned as to why she did not engage more proactively with mental health programs or other forms of support during this period. The Tribunal accepts that in the circumstances of her ongoing mental health challenges, seeking such assistance may not have been a simple matter.

   Did the Applicant’s circumstances not make their full impact until on or after the census date of the Units?

7. Having found that the Applicant’s circumstances do not fall within paragraph 97-30(1)(a), the Applicant has not met the criteria for re-crediting of her HELP balance under section 97-25.

8. However, had it been decided that the Applicant had circumstances that were beyond her control, the Tribunal would have been required to determine whether it was satisfied that the Applicant’s circumstances did not make their full impact on her until on or after the Census Date for the purposes of paragraph 97-30(1)(b) as set out in Administration Guideline 13. The parties provided submissions on this criteria and the Tribunal makes the following observations.

9. The Applicant acknowledged that her ‘circumstances’ (being her medical conditions) existed or occurred prior to the Census Date.[40] She also told the Tribunal about issues with her attendance at classes between June to August 2022, the social anxiety she experienced when participating in classes and some difficulties interacting with one of her tutors. However she said that, with assistance from the University, she still attended some classes. Therefore, the issue is whether those circumstances worsened after the Census Date, or the full effect or magnitude did not become apparent until on or after the Census Date. The Applicant relied in particular on the statements made by Professor S and Dr A.  She also told the Tribunal that prior to the end of August 2022 she had been hoping to keep on with her job but things got worse after she was laid off.

   [40] Sub-paragraphs D.c.i. and iv. of the Applicant’s SFIC.

10. The Respondent does not dispute that the Applicant experienced a ‘flare up of her mental health symptoms during Semester 2 of 2022.’ However, the Respondent submitted that the various medical reports and statements were inconsistent. The Respondent also highlighted other occasions of the Applicant having withdrawn from studies with previous higher education providers due to her mental health conditions and having identified instances of suicidal ideation prior to the termination of her employment. This raised a question as to whether the impact of her circumstances after August 2022 was worse than previously.

11. In his letter dated 16 April 2024, Professor S made a statement that the Applicant’s symptoms reached their peak on or after 31 August 2022. His letter is brief and does not set out the basis upon which he drew that conclusion. It is prefaced by an observation that the Applicant had been asked to substantiate her condition for the purposes of her Tribunal proceeding. As noted above, it does not appear that Professor S saw the Applicant in or around August 2022, or since that date. Following a summons, he confirmed that he had no records relating to the Applicant for August 2022. The Applicant gave evidence that she saw Professor S on approximately three occasions across 2020 and 2021. The Tribunal is therefore unable to place significant weight on Professor S’s letter in relation to this question.

12. Similarly, although Dr C’s statement covered the period from 2 August 2022 to 28 August 2023, her statement was made in August 2023 after what appears to be a single consultation with the Applicant in late August 2023. Dr C’s statement does not address the issue of when the Applicant’s medical conditions worsened or reached their full effect or magnitude. Her statement that the impact of the Applicant’s conditions was ‘severe’ during this period could be interpreted as the Applicant having suffered that impact some time before the Census Date, that is, from early August 2022. In any event, the Tribunal would not place significant weight on Dr C’s statement in relation to this question.

13. The Tribunal has previously indicated that it preferred the evidence of Dr A on the basis of his longer history of treating the Applicant, his having seen the Applicant in person during the period June to October 2022, and his reports having been made contemporaneously or apparently drawn from notes he made contemporaneously. In his statement of September 2022 he referred to a ‘moderate’ impact arising from ‘August 2022.’ He revised this to ‘31 August 2022’ in his statement of September 2023. It is not clear whether he initially believed the full impact on the Applicant arose before or after 31 August 2022. The reason for the revised date is also not clear.[41] Dr A’s statement of 17 May 2024 refers to a consultation with the Applicant in September 2022, when he noted the exacerbation of her underlying anxiety and her symptoms continuing to be ‘increasingly troublesome.’ This may suggest Dr A’s view was that the full impact was still unfolding in late September 2022. However the lack of clarity about his opinion requires consideration of evidence of other facts and circumstances prevailing at this time.

    [41] Dr A was not called to provide evidence.  When a summons for the Applicant’s medical records was served on the clinic where he previously worked the clinic advised that he had left.

14. The Applicant gave evidence in her witness statement that although she was struggling with her studies before the Census Date, with her employment also ending on 31 August 2022 she found herself in a situation where completing the Units was no longer possible. She indicates that the pressure on her finances also started from this date. The Applicant took a formal leave of absence from her studies from Semester 1 of 2023. Dr A’s statement of 30 October 2023 notes the Applicant’s loss of employment on 31 August ‘2023’ (presumably meant to be a reference to 2022) but does not provide any opinion on the interrelationship with the Applicant’s medical conditions.

15. The Tribunal’s view is that there is insufficient evidence for it to be satisfied that the Applicant’s circumstances worsened after the Census Date or that the full effect or magnitude did not become apparent until on or after the Census Date. Therefore the Applicant would not have met the condition in paragraph 97-30(1)(b) of the HESA.

    Did the Applicant’s circumstances make it impracticable for her to complete the requirements of any of the Units?

16. Having determined above that the Applicant has not met other criteria for special circumstances in subsection 97-30(1), it is not strictly necessary to consider the criteria in paragraph 97-30(1)(c) as set out in Administration Guideline 14. However the Tribunal again acknowledges the submissions made by the parties on this issue.

17. The Applicant agreed that her medical conditions existed prior to the Census Date, however as described above, her medical conditions changed by reaching their peak, such that she was unable to continue studying.[42] The Applicant referred to Professor S’ statement in his letter of 16 April 2024 that her conditions made it difficult for her to seek effective treatment and had an effect on her ability to undertake study related tasks ‘and this effect was so significant that completing units of study was not possible.’[43]  At the hearing the Applicant gave evidence that although support was technically available, she could not access it.  The Applicant referred to the possibility of postponing some assessments and catching up on missed laboratory sessions, however this did not happen.  It was not clear from her evidence whether this was due to conditions imposed by the University or arose from her own actions (or inactions) or a combination of the two.

    [42] See Administration Guideline paragraph 14(1)(a).

    [43] Paragraph D.d.ii. and iii. of the Applicant’s SFIC.

18. The Respondent referred to previous decisions of the Tribunal which suggested the word ‘impracticable’ as used in paragraph 97-30(1)(c) meant ‘not able to be done’[44] rather than ‘difficult.’[45]  This is consistent with a dictionary meaning of ‘impossible in practice to do or carry out.’[46] The Respondent submitted that the statements provided by Dr A indicated his view that the Applicant was able to conduct many tasks required for studying the Units, and that the evidence of Dr A should be preferred over that of Professor S (or Dr C).

    [44] Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 at [45] per Deputy President Forgie and Member Cameron.

    [45] Georgiou and Secretary, Department of Education and Training [2019] AATA 170 at [20] per Senior Member Poljak.

    [46] Oxford Dictionary.

19. Professor S opined that the Applicant’s ‘condition’ had ‘an effect’ that was so significant that it was not possible for her to complete the Units. He referred to her ‘lowered mood’ and ‘inability to focus’ following cessation of her employment. As noted previously, the Tribunal is mindful that Professor S wrote this letter some time after the relevant events relating to Semester 2 of 2022, and there is no indication that he saw the Applicant at this time to assess her conditions. Similarly, although Dr C assessed the impact of the Applicant’s conditions as ‘severe’ and said that the Applicant was unable to perform verbal or physical tasks or tasks requiring intense focus for 1 – 2 hours, she also appears to have seen the Applicant some time after the relevant events, and only on a single occasion. It is noted that Dr C believed that the Applicant was able to perform verbal or physical tasks, albeit with a ‘degree of impact’.

20. The Tribunal has explained the reasons why it has preferred the evidence of Dr A over that of Professor S. The fact that the Applicant was consulting Dr A directly during 2022 and into 2023, and that his statements incorporate contemporaneous notes from those consultations, is particularly relevant in the context of this criteria. As of 29 September 2022, he believed the Applicant was able to perform reading and writing tasks, verbal or physical tasks and tasks requiring intense concentration for 1 – 2 hours ‘with a degree of impact.’ Even though he was supportive of the Applicant’s wish to defer her studies, he also described the level of impact of her conditions at that time as ‘moderate.’ His subsequent statement of 30 October 2023 repeated that assessment by reference to the period from 31 August 2022 to 1 January 2023.

21. The Applicant told the Tribunal that following her employment separation in August 2022 she faced significant financial difficulties, receiving very little by way of severance entitlements and having limited savings. At the same time, she had significant expenses, including sole responsibility for the rent of her home. It was some time before she was able to access Centrelink benefits. Administration Guideline paragraph 14(1)(c) provides that a decision maker will be satisfied that a person’s ‘employment related circumstances’ make it impracticable for them to complete a unit of study, for example where the person’s employment status or arrangements have changed so that the person is unable to continue their studies and this change is beyond their control.

22. It is clear that the employment status of the Applicant changed and the Tribunal accepts the Applicant’s evidence that this caused her financial hardship. The Applicant described this hardship as a circumstance that worsened her mental health conditions, with the consequences as set out above. The Applicant did not articulate a direct causal effect between her employment circumstances and the impracticability of completing her studies.

23. The Tribunal’s view is that there is insufficient evidence for it to be satisfied that the Applicant’s circumstances made it impracticable for her to complete the requirements for the Units in the period she was to undertake those Units. Therefore the Applicant would not have met the condition in paragraph 97-30(1)(c) of the HESA.

    NON-DISCLOSURE ORDER

24. During the course of the hearing, it became apparent that the Applicant was being asked to disclose highly sensitive information about her medical conditions, in circumstances where she had given evidence that discussion of her conditions and recordings of her had previously had an adverse effect on her mental health. This included instances of suicidal ideation.

25. Decisions of the Tribunal may be published on the website in the absence of a non-disclosure or non-publication order made under section 70 of the ART Act. This approach is consistent with subsection 71(1) of the ART Act which sets out the principle that it is desirable that evidence given before the Tribunal is made available to the public. As the Applicant and her representative were not aware that the details of her proceeding, including information identifying her, were likely to be published, the Tribunal asked whether she wished to seek an order that the Applicant be referred to by way of a pseudonym when any decision was published. The Tribunal also invited the Respondent to provide their view. The Tribunal directed that the parties write to the Tribunal by 21 May 2025 as to whether an order would be sought.

26. The parties wrote to the Tribunal with an agreed position that a pseudonym order would be appropriate in light of the detailed evidence given in relation to the Applicant’s medical conditions and the significant distress and consequential harm that might arise to her if those details were made public. The Tribunal made an order under section 70 for the Applicant to be identified by a pseudonym accordingly.

27. In drafting this decision the Tribunal has also chosen not to name the medical practitioners whose statements were provided as evidence. This might tend to identify the Applicant, and it was otherwise sufficient for the purposes of making this decision to identify their occupation and area of expertise and set out the content of their statements.

    CONCLUSION

28. For the Applicant to be re-credited with an amount of HELP balance referable to the Units it was necessary for the Tribunal to be satisfied that each of paragraphs (a), (b) and (c) in subsection 97-30(1) are met. The Tribunal was not satisfied that any of those paragraphs was met. Therefore the Tribunal is not satisfied that ‘special circumstances’ exist for the purposes of paragraph 97-25(2)(c).

29. The Tribunal reiterates that its decision must be based on the specific wording of the provisions of the HESA and the Administration Guidelines. The Tribunal accepts that the Applicant has faced significant challenges arising from her medical conditions and sought to give an honest account of her experiences to the Tribunal.

Date of hearing:	13 May 2025
Counsel for the Applicant:	Mr Dylan Ioannou-Booth
Solicitors for the Respondent:	Ms Lily Butterfield of Minter Ellison