Tursunbek and Secretary, Department of Education

The applicant, Tursunbek, sought a review of a decision by the Secretary, Department of Education, concerning an application for remission of a HECS-HELP debt. The dispute centred on whether the applicant had made her application for remission within the prescribed 12-month period following her withdrawal from units of study. The matter was heard by Mrs J C Kelly, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant had made her application for remission of the HECS debt before the end of the application period, and if not, whether the requirement that the application be made within that period should be waived. This waiver was to be considered on the ground that it was not possible for the application to be made before the end of that period, pursuant to section 79-1(e)(ii) of the relevant Act.

The Tribunal considered the applicant's evidence, which detailed significant personal difficulties including mental state, substance abuse, overseas travel, marriage and marital abuse, and attempts to deport her husband, all occurring between 2004 and 2006. The applicant argued these circumstances prevented her from making an "achievable and acceptable decision" and from realising the need to lodge an application for remission within the 12-month timeframe. However, the Tribunal noted that the phrase "not possible" imposes a high threshold, requiring unachievability or a very serious constraint on a person's ability to act, and more than simple neglect. The Tribunal also referred to the University's Calendar, which indicated that students enrolling in HECS-liable courses were put on notice of their HECS liability and the procedures for withdrawal and remission. Given the applicant had enrolled and deferred her HECS liability, she was aware of the debt.

Ultimately, the Tribunal was not satisfied that it was not possible for the applicant to make her application before the end of the application period, as required by section 79-1(e)(ii) of the Act. Consequently, the reviewable decision was affirmed.