Tollo and Secretary, Department of Education

Case •

[2023] AATA 2578

•

15 August 2023

Tollo and Secretary, Department of Education [2023] AATA 2578 (15 August 2023)

Division:General Division 

File Number:2021/1569          

Re:Mr Khiam Tollo  

APPLICANT

AndSecretary, Department of Education

RESPONDENT

DECISION

Tribunal:Senior Member B. Pola

Date:15 August 2023

Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), I affirm the reviewable decision of the respondent, dated 15 February 2021.

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

Senior Member B. Pola

Catchwords

HIGHER EDUCATION SUPPORT – respondent refusal of removal of HECS-HELP debt – whether special circumstances exist – whether the applicant’s circumstances were beyond his control – whether the applicant’s circumstances made their full impact on or after the census date – medical evidence of applicant health conditions presented – Higher Education Support Act 2003 (Cth) applied – statutory elements not satisfied – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Higher Education Support Act 2003 (Cth)

Higher Education Support (Administration) Guidelines 2022

Cases

Georgiou and Secretary, Department of Education and Training [2019] AATA 170

Montenegro v Secretary, Department of Education [2020] FCAFC 210

Sadek and Secretary Department of Education [2017] AATA 1399

Tralongo and Secretary, Department of Education [2016] AATA 393

Ullah and Secretary, Department of Education and Training [2018] AATA 2159

REASONS FOR DECISION

Senior Member B. Pola

15 August 2023

BACKGROUND

  1. The applicant, Mr Khiam Tollo, enrolled in the following three units of study as part of a Bachelor of Science which he was undertaking with the University of Queensland (herein referred to as “UQ”) in semester two of 2020[1]:

    (a)BIOT2002 - Introduction to Biotechnology (enrolled on 23 July 2020);

    (b)CHEM1100 – Chemistry 1 (enrolled 4 August 2020); and

    (c)MATH1051 – Calculus and Linear Algebra (enrolled 4 August 2020).

    [1] Exhibit TR1, T6, pages 45 to 47.

  2. The applicant had previously enrolled in CHEM1100 – Chemistry 1, and MATH1051 – Calculus and Linear Algebra in semester one of 2020, and subsequently withdrew from these subjects after the census date had passed. The applicant was ultimately successful in his application to remit fees for these two subjects[2]. For clarity, the application before the Tribunal relates to the units of study the applicant enrolled in for semester two of 2020.

    [2] Exhibit TR1, T28, page 191.

  3. The applicant received an email from UQ (approved by the Academic Registrar) on              17 August 2020 explaining that the census date for withdrawal from his units of study (without incurring fees, i.e., HECS-HELP liability) was 31 August 2020, and that the date for withdrawal from his units of study without academic penalty was 30 October 2020[3]. The census date was further communicated in an academic calendar which was available to the applicant[4].

    [3] Exhibit TR1, T11, page 69.

    [4] Exhibit TR1, T9, page 62.

  4. The applicant was emailed a statement from UQ on 10 September 2020, indicating he had incurred a total HECS-HELP debt of $3,570 for the three units of study[5].

    [5] Exhibit TR1, T4 and T5, pages 42 to 44.

  5. On 23 October 2020 the applicant inquired as to the application process for the withdrawal from his units of study, after the census date of 31 August 2020[6].

    [6]  Exhibit TR1, T13, pages 81 and 82.

  6. On 1 November 2020 the applicant wrote to UQ requesting financial withdrawal from the units of study he had enrolled in for semester 2 of 2020[7].

    [7]  Exhibit TR1, T14, pages 84 to 96.

  7. On 15 December 2020, UQ had written to the applicant to inform him of their decision to refuse his application of removal of his HECS-HELP debt for his units of study in semester two of 2020[8]. On 12 January 2021, the applicant requested a review of this decision[9].

    [8]  Exhibit TR1, T16, pages 100 to 104.

    [9]  Exhibit TR1, T17, pages 104 to 121.

  8. In a letter dated 8 February 2021, sent by email on 15 February 2021, UQ had written to the applicant to advise him that a Deputy-Vice Chancellor of the University confirmed the earlier decision to refuse his application of removal of his HECS-HELP debt for his units of study in semester two of 2020[10].

    [10] Exhibit TR1, T19, pages 123 to 127.

  9. On 14 March 2021, the applicant applied to the Administrative Appeals Tribunal (herein referred to as the “Tribunal”) for review of that decision[11].

    [11] Exhibit TR1, T1, pages 1 to 30.

    JURISDICTION

  10. Decisions by higher education providers regarding a refusal to re-credit a person’s HECS-HELP debt, pursuant to section 97-25(2) of the Higher Education Support Act 2003 (Cth) (herein referred to as the “Act”) are reviewable decisions, pursuant to section 206-1 (Item 1B) of the Act.

  11. Applications can be made to the Tribunal under section 212-1 of the Act, for reconsideration of a “reviewable decision” that has been confirmed, varied, or set aside, pursuant to section 209-5 or section 209-10 of the Act.

  12. The original decision was made on 15 December 2020. A request for an initial review of this decision was made by the applicant, and a letter dated 8 February 2021 sent by email on 15 February 2021 by the respondent confirmed the original decision[12]. It therefore follows that the Tribunal has jurisdiction to review this application pursuant to section 212-1 of the Act.

    [12] Exhibit TR1, T19, pages 123 to 127.

    ISSUE

  13. The issue before the Tribunal for consideration is whether section 97-25(2) of the Act applies to the applicant. That is, whether UQ on behalf of the Secretary for the Department of Education must re-credit the applicant’s HECS-HELP balance with an amount equal to the amount of HECS-HELP assistance that he received for the three units of study he enrolled in.

  14. This, in turn, requires the Tribunal to consider whether, “special circumstances” apply to the applicant, in accordance with section 97-30 of the Act, whilst also having regard to the Higher Education Support (Administration) Guidelines 2022 (herein referred to as the “Administration Guidelines”).

    LEGISLATIVE FRAMEWORK

  15. Part 3-2 of the Act outlines provisions with respect to how HECS-HELP assistance is made available to eligible students. Section 87-1 of the Act provides that a student may be entitled to HECS-HELP assistance for units of study for which he or she is Commonwealth supported, if certain requirements are met. The amount of assistance to which the student may be entitled is based on his or her student contribution amounts for the units, less any up-front payments. The assistance is paid to a higher education provider to discharge the student’s liability to pay his or her student contribution amounts.

  16. Section 96-1 of the Act sets out the requirements of the Commonwealth in circumstances where a student who is entitled to an amount of HECS-HELP assistance for a unit of study. The Commonwealth must lend that amount to the student, and the Commonwealth must pay the provider the amount lent in discharge of the student’s liability to pay the student contribution or the amount of the unit of study.

  17. Section 137-5 of the Act sets out provisions for determining when an individual incurs a HECS‑HELP debt. Importantly, section 137-5(3) states that an individual incurs a HECS-HELP debt, “immediately after the census date for the unit [enrolled in]…”.

  18. Section 137-5(4) of the Act provides that a person’s HECS-HELP debt in relation to a unit of study is taken to be remitted if section 36-20, 36-24A, 36-24B, 36-24BB or 36-24BC of the Act applies to the person (even if subsection 36-20(3), 36-24BB(3) or 36-24BC(3) of the Act applies to the provider in relation to the person).

  19. Section 137-5(5) provides that a person’s HECS-HELP debt in relation to a unit of study is taken to be remitted if the person’s HELP balance is re-credited under Division 97 of the Act. Relevantly, section 97-25(2)(c) provides for the recrediting of a HELP balance with an amount equal to the amounts of HECS-HELP assistance a person has received in respect of a unit of study if they are satisfied that special circumstances apply to the person as stipulated in section 97-30 of the Act.

  20. Section 97-30 of the Act provides:

    97-30 Special circumstances

    (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.

    Note: The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.

  21. It is important to note that all criteria stipulated in section 97-30(1)(a), (b) and (c) of the Act regarding special circumstances must be met for this test to be satisfied.

  22. The Administration Guidelines referred to in section 97-30(2) of the Act, are a legislative instrument made pursuant to section 238-10 of the Act and have application in the present matter.

  23. With respect to the application of the Administration Guidelines, it is important to note the decision of the Full Court of the Federal Court of Australia in Montenegro v Secretary, Department of Education [2020] FCAFC 210, with respect to the adoption of the Administration Guidelines, where His Honour Justice Flick stated[13]:

    “…Where a provision thus requires that something is to be done “in accordance with” the Administration Guidelines, what is required is that those Guidelines themselves become a “substitute regime” which is to be complied with…”

    [13] [25].

  24. His Honour Justice Charlesworth similarly stated in his reasons that the Guidelines form part of the statutory scheme for consideration by decision-makers[14]:

    “…For my part I do not consider the Guidelines to be “relevant considerations” in the sense advanced by counsel for the appellant in the course of submissions. Rather, they form a part of the statutory scheme that conferred, defined and conditioned the decision-maker’s powers…”

    [14] [64].

  25. In view of the above, it is important to have regard to the Administration Guidelines, and the relevant provisions are transposed:

    Part 3 – Special circumstances

    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) and 104-30(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) and 104-30(2) of the Act.

    14 Circumstances that make it impracticable for the person to complete the requirements

    (1) For the purposes of paragraphs 36-13(3)(c) and 36-21(1)(c) of the Act, a higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study if the person undertook, or was to undertake, the unit in the following kinds of circumstances:

    (a) medical circumstances—for example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying;

    (b) family or personal circumstances—for example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies;

    (c) employment related circumstances—for example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or

    (d) course related circumstances—for example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.

    (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

    CONSIDERATION

  26. This application was heard in Brisbane on 25 July 2023, with all parties appearing by telephone. The applicant was self-represented, whilst the respondent was represented by Ms Kristina Mihalic of HWL Ebsworth Lawyers. Also present were two observers of the respondent, Ms Sarah Hardie of HWL Ebsworth Lawyers and Ms Stephanie Ostojic of the Department of Education. The observers were non-participants at the hearing. The Tribunal heard oral submissions from the applicant, and the respondent’s representative. Additionally, the Tribunal considered submitted evidence outlined in the Exhibit Register, in Annexure 1 of these reasons.

  27. As stated in earlier reasons, the issue for consideration is whether section 97-25(2)(c) of the Act applies to the applicant, that is whether “special circumstances” apply to the applicant.

    Applicant’s claimed circumstances

  28. The applicant refers to two categories of circumstances which he claims have impacted upon his ability to withdraw from his units of study prior to the census date. These two categories relate to medical circumstances, and family circumstances. In the following paragraphs I highlight some of the relevant evidence which was exhibited with respect to the applicant’s claimed medical and family circumstances, in addition to providing an overview of the applicant’s involvement in the units of study for which he was enrolled.

    Applicant’s claimed medical circumstances

  29. Some of the key evidence with respect to the applicant’s claimed medical circumstances can be summarised as follows:

    (a)Evidence of the applicant accessing student counselling services throughout semester one and semester two of 2020, on the following dates[15]:

    [15] Exhibit TR1, section 37 T Documents, T15, page 97.

    (i)4 March 2020;

    (ii)10 March 2020;

    (iii)31 March 2020;

    (iv)6 May 2020;

    (v)20 May 2020;

    (vi)2 June 2020;

    (vii)23 July 2020;

    (viii)2 September 2020; and

    (ix)20 October 2020.

    (b)A statutory declaration and letter from the applicant’s brother, Mr Mortaza Tollo dated 12 January 2021, claiming the following with respect to the applicant, that[16]:

    [16] Exhibit TR1, section 37 T Documents, T1, pages 26 to 29; repeated at T17, pages 107 to 110; and T27, pages   

    (i)in June 2020 the applicant suffered from severe panic attacks, anxiety and headaches, which were medicated by the applicant’s General Practitioner; and

    (ii)in July 2020 the applicant had begun taking prescribed medication, but his anxiety and frequent panic attacks left him severely fatigued, and that this continued for some time until the applicant’s medications began to work.

    (c)A medical certificate from the Applicant’s General Practitioner, Dr Pran Lai, dated 15 January 2021, stating that this certificate had been provided in addition to an earlier certificate dated 12 October 2020. Dr Lai stated the following in the medical certificate[17]:

    [17] Exhibit TR1, section 37 T Documents, T17, page 111.

    “… I, Dr Pran LAI, was not a work on 12-1-2021.

    I have been asked by Mr Khiam Tollo to provide a certificate in addition to the certificate I had written on 12-10-2020.

    I was not employed at Underwood Family Doctors till June 2020.

    I saw him on 5th June when he presented with psychosomatic symptoms of anxiety over the previous one month [bold, sic]. I prescribed him medication which, I was informed later, he did not use, as he felt the diagnosis was not correct. His first symptoms developed after the census date, for 1st Semester.

    I saw him again on 8th July when he reported that he was having difficulty concentrating and he was finding it hard to concentrate on his studies for the previous one month. He was depressed. He was having difficulty studying at home cf [sic] at Uni as he was having significant issues at home, including matters mentioned in my previous letter [sic]. He was having severe headaches from his first presentation.

    I advised referral to a psychologist, and re prescribed him medication which he commenced immediately.

    He state his symptoms started to improve after a week and side effects started resolve over a month – 17 days after he had left home and his symptoms had increased at that time [sic].

    I did not see him again till 14th Oct 2020. He did not want contact with his family, he had agoraphobia and he had few friends. He mentioned that he had been having panic attacks in the first semester [bold, sic].

    Overall, I can confidently state that his studies were significantly affected by his anxiety and depression from May 2020…”.

    (d)A letter from psychiatry registrar Dr Sam Charlston dated 22 June 2022, stating that the applicant was under their care for the period of September to December 2021, and that their working diagnosis during this engagement with the applicant was “Post Traumatic Stress Disorder”, and noted that several other diagnoses were also considered[18].

    (e)A letter from counselling psychologist, Mr Robin Fraser dated 14 June 2022, with respect to an application made by the applicant for the Disability Support Pension. This letter provides opinions from Mr Fraser as to the applicant’s family and psychological history. Mr Fraser undertook a range of diagnostic tests in this report and ultimately diagnosed the applicant with “Complex PTSD”[19].

    [18] Exhibit A1.

    [19] Exhibit A2, page 5.

    Applicant’s claimed family circumstances

  30. Some of the key evidence with respect to the applicant’s claimed family circumstances can be summarised as follows:

    (a)A statutory declaration and letter from the applicant’s brother, Mr Mortaza Tollo dated 12 November 2021, claiming the following with respect to the applicant, that[20]:

    “… Breakdown of family relationship

    Starting from the beginning of 2020, a severe breakdown in the relationship between Khiam, and the rest of the family members occurred…

    … the living situation was not one where productive study is able to happen, it is noisy, there is little to no privacy or personal space, and coupled with financial troubles which the family is facing makes living in such a household quite difficult...” 

    (b)A bond application signed by the applicant after obtaining a residence, dated             15 September 2020[21].

    (c)A profile established for the applicant on “Flatmate Finders” from 3 September 2020[22].

    [20] Exhibit TR1, section 37 T Documents, T1, pages 26 to 29; repeated at T17, pages 107 to 110; and T27, page 185 to 188.

    [21] Exhibit TR1, T1, pages 17 to 25; repeated at T17, pages 112 to 120.

    [22] Exhibit TR1, T17, page 121.

    Applicant’s participation in enrolled units of study in semester two of 2020

  1. With respect to the units of study undertaken by the applicant for semester two of 2020 (which commenced on 3 August 2020, with a census date of 31 August 2020[23]), the applicant’s participation can be summarised as follows:

    (a)BIOT2002 - Introduction to Biotechnology: the applicant did not undertake any of the course assessment which consisted of an online multiple-choice exam due on            25 August 2020 with a weighting of 20%, a group assignment due on   7 October 2020 with a weighting of 30%, and a final exam that was to be held during the examination period with a weighting of 50%[24].     

    (b)CHEM1100 – Chemistry 1: The applicant did participate in some of the course assessment which included a computer-based assessment due at the commencement of the course with a weighting of 10%, for which the applicant’s final result was 3.7%; an online task with a weighting of 5% for which the applicant’s final result was 1%; laboratory experiments and a report with a weighting of 25% for which the applicant’s final result was 0; a mid-semester exam with a weighting of 20% for which the applicant’s final result was 0; and a final exam to be held in the examination period with a weighting of 40% in which the applicant did not participate[25].

    (c)MATH1051 – Calculus and Linear Algebra: The applicant did participate in some of the course assessment which included two assignments with a weighting of 12% which the applicant did not submit; three online quizzes with a weighting of 15%, with the applicant’s final result being 3.9%; a mid-semester exam with a weighting of 20% which the applicant did not sit; a diagnostic quiz which was due on   21 August 2020 with a weighting of 3% for which the applicant’s final result was 3%; a computer exercise with a weighting of 10% for which the applicant’s final result was 4.25%; and a final examination to be held during the examination period with a weighting of 40% in which the applicant did not participate[26].

    [23] Exhibit TR1, T9, pages 61 and 62.

    [24] Exhibit TR1, T21, page 133.

    [25] Exhibit TR1, T21, page 134 and 135.

    [26] Exhibit TR1, T21, pages 136 and 137.

  2. On 23 August 2020, the applicant applied for an extension of assessment due date with respect to his BIOT2002 unit of study and the online multiple-choice exam which was due on 25 August 2020 with a weighting of 20%. This request was denied on 24 August 2020 on the basis that the assessment was an in-class test[27].

    [27] Exhibit TR1, T21, pages 143 to 146.

  3. On 26 August 2020, the applicant was granted an extension of assessment due date to                 30 August 2020 with respect to his CHEM1100 unit of study, for a computer-based assessment due at the commencement of the course with a weighting of 10%[28].

    [28] Exhibit TR1, T21, page 151.

  4. On 19 August 2020, the applicant applied for an extension of assessment due date with respect to his MATH1051 unit of study, and a diagnostic quiz which was due on   21 August 2020 with a weighting of 3%. This extension was granted to 25 August 2020[29].

    [29] Exhibit TR1, T21, pages 139 to 142.

    Applicant’s participation in enrolled units of study in semester one of 2020

  5. It is worth noting that with respect to the applicant’s enrolled units of study for semester one of 2020 (which commenced on 25 February 2020, with a census date of 1 May 2020[30]), the applicant’s participation was as follows:

    (a)CHEM1100 – Chemistry 1: With respect to the applicant’s performance in assessment it is noted that he passed all the assessment which was held during the course, with the exception of the final exam. The applicant’s assessment record shows that he had applied to defer his final exam for this subject but failed this deferred final exam which had a weighting of 40%, achieving a final result of 0.87%[31].

    (b)MATH1051 – Calculus and Linear Algebra: With respect to the applicant’s performance in assessment it is noted that he passed all the assessment which was held during the course, with the exception of the final exam. The applicant’s assessment record shows that he did not sit the final examination which had a weighting of 40%, and therefore did not pass the subject[32].

    [30] Exhibit TR1, T9, pages 55 and 57.

    [31] Exhibit TR2, ST3, page 297.

    [32] Exhibit TR2, ST4, pages 298 and 299.

    Do special circumstances apply?

  6. With respect to considering whether special circumstances apply in the present application, the applicant must demonstrate to the Tribunal that for the units of study in question, his circumstances, pursuant to section 97-30(1)(a), (b) and (c) of the Act:

    (a)were beyond his control; and

    (b)did not make their full impact on him until on or after the census date; and

    (c)made it impracticable for him to complete the requirements for the units of study in the period during which he undertook or was to undertake the units.

  7. It is important to note that the test stipulated in section 97-30(1) of the Act with respect to establishing special circumstances is a cumulative test. That is, all limbs must be satisfied in order to establish that special circumstances exist.

    Were circumstances beyond the Applicant’s control?

  8. Part 3 section 12 of the Administration Guidelines (transposed in earlier reasons of this decision) state that circumstances are considered beyond the applicant’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible (observing that the situation must be unusual, uncommon or abnormal).

  9. On reflection of the evidence before me I accept the supporting documented medical evidence regarding the common diagnosis of the applicant’s Post Traumatic Stress Disorder (herein referred to as “PTSD”)[33]. The applicant stated during cross-examination he had a history of mental health issues which began when he was young, and only sought assistance for this when he was at university. Additionally, the applicant agreed that his mental health condition did fluctuate over time, whilst experiencing some minor anxiety and depression that was constant[34]. I note that the applicant has been prescribed medication to assist with anxiety by his treating General Practitioner in early July 2020, prior to the commencement of semester two of 2020[35].

    [33] Exhibit A1; and Exhibit A2, page 5; repeated at Exhibit A3, page 2.

    [34] Transcript, 23 July 2023, page 12, lines 1 to 10.

    [35] Exhibit TR1, section 37 T Documents, T17, page 111.

  10. Submitted evidence confirms the applicant was suffering from mental health issues during semester one of 2020, with the applicant accessing student counselling services on six separate occasions (between 4 March 2020 and 2 June 2020) [36]. Ultimately the applicant did not complete his studies in semester one of 2020 as he claims his medical conditions prevented him from doing so[37].

    [36] Exhibit TR1, section 37 T Documents, T15, page 97.

    [37] Exhibit TR1, section 37 T Documents, T15, page 99.

  11. I accept that the applicant’s claimed medical circumstances were beyond his control during the period he was undertaking the relevant units of study during semester two of 2020, in the sense that it was not due to his action or inaction, either direct or indirect and for which he is not responsible.

  12. However, the evidence before me clearly indicates the applicant has a long history with respect to his claimed medical circumstances. The evidence shows the applicant’s mental health conditions were prone to fluctuations over time, a fact which was known to him at the time of his enrolment for the relevant units of study in semester two of 2020.

  13. I am not persuaded by the applicant’s submission with respect to his anxiety medication (which he commenced in early July 2020) that it had not been given sufficient time to have its desired effect prior to the census date (31 August 2020). This is because the applicant was aware of his underlying medical conditions, he had a history of experiencing fluctuations in his medical conditions, and on his own admission such fluctuations led to his inability to complete his studies in semester one of 2020[38].

    [38] Transcript, 23 July 2023, page 12, lines 1 to 10.

  14. Therefore, I am of the view that the applicant’s medical circumstances are not considered unusual, uncommon or abnormal in accordance with Part 3 section 12(2) of the Administration Guidelines, as there is an established historical pattern of fluctuations in the applicant’s medical conditions over time; and it was within the applicant’s control to withdraw from the relevant units of study prior to the census date[39].

    [39] Refer to Sadek and Secretary Department of Education [2017] AATA 1399 at [28] and [29]; and Tralongo and

  15. When considering the applicant’s family circumstances, I have formed a similar view as I have found in the above reasons with respect to the applicant’s medical circumstances.

  16. I accept that the family circumstances of the applicant are beyond his control. However, I am not persuaded by the evidence tendered and on the submissions of the applicant that his family circumstances would be considered unusual, uncommon or abnormal in accordance with Part 3 section 12(2) of the Administration Guidelines, as the applicant’s family circumstances were known to him prior to enrolment and commencement of the relevant units of study in semester two of 2020.

  17. Evidence submitted by the applicant from his brother, confirms the applicant’s volatile family circumstances had begun in early 2020 (prior to the enrolment and commencement of the relevant units of study in semester two of 2020). Specifically, the applicant’s brother stated[40]:

    “…Starting from the beginning of 2020, a severe breakdown in the relationship between Khiam, and the rest of the family members occurred…

    … the living situation is not one where productive study is able to happen, it is noisy, there is little to no privacy or personal space, and coupled with financial troubles which the family is facing makes living in such a household quite difficult...” 

    [40] Exhibit TR1, section 37 T Documents, T1, pages 26 to 29; repeated at T17, pages 107 to 110; and T27, page    185 to 188.

  18. During cross-examination at the hearing, the applicant repeatedly gave evidence that he did not withdraw from the relevant units of study due to “family pressure” he felt he would face, and that he was “scared” of his family’s response should he withdraw[41]. I am not persuaded by these arguments of the applicant, particularly in circumstances where he chose to take steps to leave the family home whilst he proactively managed his studies in semester two of 2020 by seeking extensions for and undertaking various assessments for the relevant units of study. I am of the view that it was within the applicant’s control to take action to withdraw from the relevant units of study in semester two of 2020 prior to the census date, despite his claimed family circumstances at the time.

    [41] Transcript, 23 July 2023, page 24, lines 31 to 40.    

  19. I have found that the applicant did not satisfy section 97-30(1)(a) of the Act, noting the applicant is required to satisfy all provisions in section 97-30(1)(a), (b) and (c) of the Act in order to meet the test for special circumstances. Although I have found the applicant did not meet the first limb of this cumulative test, for completeness I will review the remaining limbs of this test.

    Did circumstances make their full impact on or after the census date?

  20. With respect to the application of Part 3 section 13 of the Administration Guidelines, that is whether the applicant’s circumstances made their full impact on or after the census date, the Administrative Guidelines state that 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; or

    (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.

  21. As outlined in earlier reasons of this decision, the applicant’s medical circumstances were known to him prior to enrolment in the relevant units of study in semester 2 of 2020. There is evidence the applicant accessed student counselling services on six occasions prior to the commencement of the relevant units of study in semester two of 2020. During cross-examination the applicant conceded that he experienced fluctuations in his medical conditions, and he had a history of mental health issues which began when he was young, and only sought assistance for this when he was at university.

  22. In a statement provided by the applicant’s brother, he confirmed that the applicant had experienced a fluctuation in his medical conditions in early June, prior to the commencement of the relevant units of study in semester two of 2020[42]:

    “…Early in June 2020, Khiam started experiencing severe panic attacks, anxiety and headaches, and was serious enough for medication to be prescribed to Khiam by his GP. Khiam started taking medication in Mid-July on the 16th July 2020, and additionally the frequent panic attacks, and anxiety made him severely fatigued, and did not stop well after July as it takes time for the medications to start to work…” [sic]

    [42] Exhibit TR1, Section 37 T Documents, T1, page 28.

  23. On reflection of the evidence before me, I am not persuaded that the claimed medical circumstances of the applicant did not make its full effect, or that the magnitude of which did not become apparent to the applicant on or after the census date. I am of the view that upon reflection of the evidence, the claimed medical circumstances of the applicant were apparent to him well before the census date.

  24. With respect to the applicant’s claimed family circumstances, I am of the view that these circumstances existed well before the census date and I refer to the evidence which I have outlined in earlier reasons, which include the written statement of the applicant’s brother confirming that the applicant’s volatile family circumstances had begun in early 2020 prior to the enrolment and commencement of the relevant units of study in semester two of 2020.

  25. Additionally, I refer to the applicant’s own actions when he proactively managed his course work for the relevant units of study in semester two of 2020 by seeking extensions for assessment in the period prior to the census date, observing that for an extension request on 19 August 2020, he stated “family disharmony” as a reason for the request[43].

    [43] Exhibit TR1, Section 37 T Documents, T22, page 138.

  26. I am not persuaded by the applicant’s claims that it was only apparent to him that he had to move out mid semester on 3 September 2020 (after the census date of 31 August 2020), in view of the contradictory evidence I have outlined above, which confirms the volatile family circumstances of the applicant existed well before the census date[44]. I am of the view that there is insufficient evidence to support the applicant’s claims that his family circumstances worsened after the census date.

    [44] Exhibit TR1, T1, page 16.

  27. I have found the applicant did not satisfy the second limb of the special circumstances legislative test set out in section 97-30(1)(b) of the Act. I have previously found the applicant did not satisfy the first limb of the cumulative test set out in this section of the Act. For completeness, I will review the final limb of this test.

    Did circumstances make it impracticable for the Applicant to complete requirements of the units of study in question?

  28. Part 3 section 14 of the Administration Guidelines, provides that 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 during the period which the person undertook, or was to undertake the unit, if circumstances such as the following have occurred (relevant to the present application):

    (a)“medical circumstances” can be established (for example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying); and

    (b)“family or personal circumstances” can be established (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 studying).

  29. With respect to whether circumstances made it ‘impracticable’ to complete study requirements, I refer to Ullah and Secretary, Department of Education and Training[45], where Member Hyman stated:

    “…In my view none of the matters canvassed made it impracticable for Mr Ullah to continue his studies. Mr Ullah’s problems with his studies certainly made it more difficult for him to succeed, but they did not make it impracticable to continue, and he acknowledged during the hearing that although internet access in his village was limited, it was not so limited as to make it impossible for him to continue his studies. His loss of employment when he left Pakistan no doubt reduced his income but did not prevent him from studying. His wife’s health, as noted above, did not, on the evidence available to me, change significantly after the census date and so there is no evidence that it had an impact on his ability to study...”

    [45] [2018] AATA 2159 at [36].

  30. I also refer to Senior Member A Poljak in Georgiou and Secretary, Department of Education and Training, where they stated the following with respect to “impracticable”[46]:

    “…I accept that the situation in early 2013 was unfortunate for the applicant and that she suffered from depression and anxiety in the early stages of undertaking her studies. However, while the available evidence may lead to a conclusion that it would be difficult for the applicant to complete the requirements of the Units, it is insufficient to establish that the circumstances were such that it was impractical for this to be done. I note that in the letter of Ms Malone she speaks of the applicant’s cognitive difficulties and its impact on her decision-making capabilities; I give this evidence little weight as it is not contemporaneous to when the applicant allegedly withdrew from the Units, or the census date in 2013...”

    [46] [2019] AATA 170 at [20].

  31. With respect to the applicant’s claimed medical and family circumstances, the Administration Guidelines further provide that a person is unable to complete the requirements for units of study if the person is unable to[47]:

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

    (b)complete the required assessable work; or

    (c)sit the required examinations; or

    (d)complete any other course requirements.  

    [47] Part 3, section 14(2) of the Administration Guidelines.

  32. Of the corroborative medical evidence tendered by the applicant, I am of the overall view that it does not sufficiently demonstrate how the applicant’s medical conditions made it impracticable for him to complete the course requirements for the relevant units of study. For example, Dr Lai’s medical certificate of 15 January 2021, simply stated that the applicant’s studies “… were significantly affected by his anxiety and depression from May 2020..” [48].

    [48] Exhibit TR1, section 37 T Documents, T17, page 111.

  33. I have reviewed the exhibited report by Mr Fraser of 14 June 2022 and note the following with respect to his comments regarding the applicant’s university studies[49]:

    “… Regarding his financial challenges, the cognitive implications of his mental health problems meant that Mr Tollo has some significant debts owed to his University due to deregistering for courses too late. We are in the process of helping him apply to the university for an exemption of these fees as his mental health and home environment made it very very difficult for him to plan and think logically. At that time, he was also trying to fight to survive day to day while living at home. This eventually led to him moving out of home and into a rental apartment, which he is paying for with some savings he made in high school while working with one of his brothers…” [sic]

    [49] Exhibit A2, page 5; repeated at Exhibit A3, page 3.

  1. I am of the view that the above-mentioned report does not establish that it would have been impracticable for the applicant to complete the requirements of the units of study prior to the census date in semester two of 2020 for the purposes of applying Part 3 section 14 of the Administration Guidelines.

  2. I concur with the respondent’s contention that whilst the medical evidence supports the applicant’s claims of symptoms such as anxiety, headaches, and blurred vision fluctuating throughout the period he was undertaking studies in semester two of 2020; the evidence does not demonstrate how those symptoms meant that he could not, for example, undertake the necessary private study requirement, complete the required assessable coursework or sit the required examinations. I further concur that the applicant failed to link the actual effects of his symptoms to an inability to complete the requirements of the relevant units of study[50].  

    [50] Exhibit R1, page 18, paragraph 64.

  3. I am of the view that (1) the applicant has failed to establish that his claimed family circumstances were such that it would have been unreasonable to continue in his studies; and (2) there is a lack of evidence with respect to his claimed family circumstances which supports the requirement that it would have been impracticable for him to complete his university coursework for the relevant units of study.

  4. As outlined in earlier reasons of this decision, the evidence of the applicant’s brother was that the applicant’s volatile family circumstances existed in early 2020, well before the census date. Further, evidence tendered of the period prior to and/or following the census date, confirms the applicant was able to:

    (i)undertake assessments for his units of study in semester two of 2020[51];

    (ii)proactively manage his course work in the period leading up to him moving out of the family home by applying for extensions for assessment, including citing “family disharmony” as a reason for an extension request on 19 August 2020[52]; and

    (iii)source alternative accommodation arrangements[53].

    [51] Exhibit TR1, section 37 T documents, T21, page 133 to 137.

    [52] Exhibit TR1, section 37 T documents, T22, page 138.

    [53] Exhibit TR1, section 37 T documents, T1, pages 17 to 25; repeated at T17, pages 112 to 120.

  5. I concur with the respondent and I am also of the view that the applicant’s established pattern of behaviour shows that it was not the applicant’s circumstances which made it impracticable to complete the requirements of the relevant units of study in semester two of 2020; it was his failure to properly engage with the units of study[54]. This was demonstrated in semester one of 2020, where the applicant failed CHEM1100 – Chemistry 1 (with the applicant’s assessment record showing that even after successfully applying to defer his final exam which had a weighting of 40%, that he only achieved a final result of 0.87%[55]).  

    [54] Exhibit R1, pages 17 and 18, paragraph 61.

    [55] Exhibit TR2, supplementary section 37 T documents, ST3, page 297.

  6. For the reasons I have outlined I am of the view that it may have been difficult for the applicant to complete the requirements of the relevant units of study given the claimed medical and family circumstances of the applicant. However, I am of the view that these circumstances did not make it impracticable for him to complete the requirements of the relevant units of study. Therefore, I am of the view the applicant did not satisfy the third limb of the legislative test set out in section 97-30(1)(c) of the Act.

    Summary

  7. For special circumstances to be established, pursuant to section 97-30(1) of the Act, all limbs of the test must be satisfied (that is, section 97-30(1)(a), (b) and (c)).

  8. Special circumstances apply to a person where it is established that the circumstances (1) were beyond the person’s control; and (2) did not make their full impact on the person until on or after the census date for the unit of study; and (3) made it impracticable for the person to complete the requirements for the unit during the period which the person undertook or was to undertake the units of study.

With respect to section 97-30(1)(a) of the Act, I have found

that it was within the applicant’s control to take action to withdraw from the relevant units of study in semester two of 2020 prior to the census date, despite his claimed medical and family circumstances at the time.

  1. With respect to section 97-30(1)(b) of the Act, I have found that both the claimed medical and family circumstances of the applicant were apparent to him well before the census date. Further I was not persuaded that the claimed medical circumstances of the applicant did not make its full effect, or that the magnitude of which did not become apparent to the applicant on or after the census date. I also found that there was insufficient evidence to support the applicant’s claimed family circumstances worsened after the census date.

  2. With respect to section 97-30(1)(c) of the Act, I was of the view that it may have been difficult for the applicant to complete the requirements of the relevant units of study given the claimed medical and family circumstances of the applicant, but for reasons outlined I was not persuaded that it would have been impracticable for him to complete the requirements of the relevant units of study.

  3. I have found that the applicant did not meet any of the limbs of the requisite test with respect to establishing special circumstances, pursuant to section 97-30(1), (a), (b) and (c) of the Act.

  4. I therefore find the applicant is not entitled to have his HECS-HELP assistance for the units of study recredited to him, pursuant to section 97-25(2) of the Act, as I have found the applicant does not satisfy the requirements of section 97-25(c) of the Act.

    DECISION

  5. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), I affirm the reviewable decision of the respondent, dated 15 February 2021.

    I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola.

    …………[SGD]………………

    Associate

    Date: 15 August 2023

    Date of Hearing:  25 July 2023

    Applicant:  Mr Khiam Tollo

    Respondent:  Secretary, Department of Education

    Respondent Representative:             Ms Kristina Mihalic HWL Ebsworth Lawyers

    Observers:Ms Stephanie Ostojic of the Department of Education

    Ms Sarah Hardie of HWL Ebsworth Lawyers

    Annexure 1 – Exhibit Register

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

R1

Respondent’s Statement of Facts, Issues and Contentions & attachment chronology of events

R

1 May 2023

1 May 2023

R2

Respondent Summary of Issues

R

23 June 2021

23 June 2021

R3

Respondent Bundle of Authorities

R

N/A

9 May 2023

TR1

Respondent Section 37 T Documents

R

N/A

13 April 2021

TR2

Respondent Supplementary Section 37 T Documents

R

N/A

1 May 2023

A1

Letter from Dr Sam Charlston of Toowong Specialist Clinic

A

22 June 2022

8 August 2022 (1 x covering email)

A2

Letter to Centrelink of Mr Robin Fraser, Counselling Psychologist, Blue Flame Wellness

A

14 June 2022

A3

Initial Special Circumstances Criteria Statement

A

N/A

A4

Letter to Applicant from Brianna Donnelly (Provisional Psychologist) and Amy Underwood (Counselling Psychologist), UQ Psychology Clinic

A

7 September 2021

A5

5 x screenshots of mobile phone call log and text message correspondence

A

N/A

23 August 2022 (1 x covering email)

A6

Special Circumstance Criteria Statement

A

N/A

A7

Letter to Dr Sankar from Dr David Lee, Brisbane Neurology

A

20 March 2022

A8

Medical Certificate of Dr Ruban Sankar

A

13 October 2021

14 October 2021

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

A9

Diagram of Summary/Timeline and covering email

A

N/A

19 July 2023


   185 to 188.


   Secretary, Department of Education [2016] AATA 393 at [24].

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  • Administrative Law

  • Statutory Interpretation

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  • Judicial Review

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Cases Citing This Decision

1

QQKR and Secretary, Department of Education [2025] ARTA 1235
Cases Cited

4

Statutory Material Cited

0

Montenegro v Secretary, Department of Education [2020] FCAFC 210
Sadek and Secretary, Department of Education [2017] AATA 1399
Ullah and Secretary, Department of Education and Training [2018] AATA 2159